The Democratic Party Wasn’t Ready for a Black President

There is something that has been tossing around in my head for now almost four years.  I think it crystalized tonight when I saw that liberals had created a hashtag on Twitter: #Negrospotting.

Words cannot express how infuriated I was (although I tried).

For those less embedded in the Twitter world, a hashtag is a way of marking a subject and aggregating comments on that subject.  So apparently liberals thought it would be funny to spot how many black people were in the audience at the Republican National Convention.  I tried to put my anger into words on twitter:

*facepalm* I can't believe that libs are so un-self-aware as to create a hashtag called #negrospotting cc @michellemalkin @twitchyteam (fix)
— Aaron Worthing (@AaronWorthing) August 29, 2012

Hey libs, can you hear THIS dog whistle? #negrospotting most racist hashtag ever.
— Aaron Worthing (@AaronWorthing) August 29, 2012

If twitter existed in the 1930's #jewspotting would have been a hashtag. Shame on libs who created #negrospotting cc @michellemalkin
— Aaron Worthing (@AaronWorthing) August 29, 2012

And of course Michelle Malkin, who has had more than a little experience with liberal racism, had her own thoughts.

SHAME SHAME SHAME on all you racist progs playing the #negrospotting game. Dear God, you people are sick. #gop2012 #rnc2012
— Michelle Malkin (@michellemalkin) August 28, 2012

And I liked Stevie J. West’s commentary too.

.@wilbs999 Liberals are finding black people at the RNC and calling it #NegroSpotting. #BecauseActualRacism
— Stevie J. West (@StevieJWest) August 29, 2012

(Sometimes hashtags are also used as a way of making a side comment, often sarcastically, which is what she did when she said “#BecauseActualRacism”)

And there is more coverage of this vileness over at Twitchy.  But then I wrote out something that might seem like a non sequitur to most of you:

It is becoming increasingly clear to me that Democrats wereNOT ready for a black president.
— Aaron Worthing (@AaronWorthing) August 29, 2012

Well, twitter only allows 140 characters, so I will explain what I mean by that.

Breaking: Obamacare Survives... As a Tax?! (Update x3: Decision Embedded, Analyzed, and Geraghty Weighs in on the Need for a Filibuster-Proof Majority)

No opinion yet.  Will update when there is one.  Update: here it is.  The Supreme Court's servers are probably going to crash, so I uploaded a copy of it to Scribd.


Obamacare Decision

I find that to be a highly dubious approach to things.  I wrote about this idea back in my Patterico days, here.

As I tweeted just a while ago, it looks like if you want to get rid of Obamacare, you need to get rid of Obama... and just enough Democrats to survive a filibuster.

And let me say something else.  This demonstrates that we cannot simply outsource fidelity to the Constitution to any one branch.  The Supreme Court has allowed flagrantly unconstitutional laws to stand before.  Under the Alien and Sedition Acts, people were being imprisoned for criticizing the President—for engaging in protected speech.  Truth was not even allowed as a defense.  (Gee, that sounds oddly familiar...)

And then what happened?  We the people rose up and threw those bastards out.  They called it the Revolution of 1800, one of several claimed peaceful “revolutions” at the ballot box.  We the people are the ultimate guardians of our Constitution.

So yes, it is a result I am not happy with.  But if you don’t like it, we need to get Obama out of office.  It’s that simple.

Update: Patterico has video of Obama denying the mandate is a tax.  This is a great day for politicians who want to have their "I didn't raise taxes" cake, and eat it too.  Obama can pretend he didn't raise taxes because it is not called a tax, but gets to keep Obamacare as a law on the taxing power.

Update (III): Jim Geraghty outlines what it takes to undo this.  I see that Romney can to much by himself, and even more with a majority in Congress, but can he get rid of all of it without a filibuster?  Its unclear.

Update(II): Some quick analysis of the opinion by Roberts...

Passed Out at Church Today

This is from a D.C. area Catholic church, which shall remain nameless.  This represents the front and back of a little card they handed out—small enough to fit in my shirt pocket.  On the front is a specific prayer and the back is a message.

This seems obviously related to the recent concern and litigation over Obamacare.  I previously discussed the matter here.

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Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

Obama Stumbles Badly on Judicial Review (Update: Audio Link Added) (Update: Instalink!)

Update (IV): Instalink!  Sweet!  (And thanks.)


Update (III): The Fifth Circuit has revised its request and it has already been completed by the esteemed Bartholomew Simpson, Esq.:





I mean that is what it is like, right?  (Created using this site.)


Update (II): Scroll down for my analysis of the audio from the Fifth Circuit essentially spanking the U.S. counsel, for what the President said.  I am leaving her name out of this to reduce the level of embarrassment because none of this is her fault.

So yesterday the President made some stunningly stupid comments on the challenge to Obamacare:

Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.

I would be hardly the first commentator who pointed out that it is far from unprecedented for the Supreme Court to strike down Congressional laws as conflicting with the Constitution.  Now truthfully, they far more often strike down state laws, than Federal laws, but they do indeed get struck down all the time.

And I am not the first to point out that this claim is dishonest in another way, namely by claiming that a strong majority passed this law.  In barely squeaked by and indeed in Massachusetts, Scott Brown was elected precisely to stop this legislation, and the Democrats resorted to shenanigans to get it passed without his input.

Fewer people notice how dishonest the lines just after it are:

And I'd just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint -- that an unelected group of people would somehow overturn a duly constituted and passed law.  Well, this is a good example.  And I’m pretty confident that this Court will recognize that and not take that step.

First off the average conservative commentator thinks that this law is unconstitutional.  So if anything counts as activism in their minds, it would be upholding this law, mandate and all.

Second, it’s interesting that he frames this merely as a conservative concern.  That is because he has no cause to complain about activism.  As I wrote in my Patterico days:

And notice that term “activism.”  The correct translation when a liberal says it is “a decision I don’t like.” There is no other definition for liberals.  They don’t mind cases that overturn precedents, that overturn federal laws, and that invent rights out of thin air.  Let’s suppose for the sake of argument that the judge’s opinion is not supported by the [C]onstitution or precedent—they have no principled objection to that.  So their objection is merely to losing.

You might also enjoy the “augmented” version of the quote by Dana Pico at Common Sense Political Thought (I always appreciated the kind words written there, too).

The point is that it is fundamentally dishonest for a liberal to complain about judicial activism.  That’s not to say that true judicial activism isn't a problem.  After all, suppose that secretly behind closed doors the outcome of Bush v. Gore was really about which candidate they preferred?  Then that is a problem, isn’t it?  I mean every justice, as an American citizen, has a right to vote for President, but this would give their vote infinitely more power than any ordinary citizen, if they choose election law cases based on who they want to win.  So much for one person, one vote, right?  I don’t think that is what they did, but I would be the first to denounce it if that is what I believed.

And put aside the reality behind Bush v. Gore, the case also shows how inherently dangerous it is to have a large portion of the population believe that the Supreme Court is more or less corrupt.  I mean that is what activism is, really: corruption.  It is justices disregarding their oaths of office and exercising power not granted to them.  And the problem is that when many people believe that the Supreme Court is corrupt, that they let their politics rather than the law guide their decisions, then it means that we have no neutral umpire in our government.  There is no neutral party that the other branches can go to for fair arbitration.  So when we have a crisis like the one Bush v. Gore represented, we have a very real danger that a large part of the country will not accept their decision as binding.

Anyway, today Obama tried to walkhis comments back, and ended up coming off clumsy again:

MR. SINGLETON:  Mr. President, you said yesterday that it would be unprecedented for a Supreme Court to overturn laws passed by an elected Congress.  But that is exactly what the Court has done during its entire existence.  If the Court were to overturn individual mandate, what would you do, or propose to do, for the 30 million people who wouldn’t have health care after that ruling?

THE PRESIDENT:  Well, first of all, let me be very specific. We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce -- a law like that has not been overturned at least since Lochner.  Right?  So we’re going back to the ’30s, pre New Deal.

And the point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it’s precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress.  And so the burden is on those who would overturn a law like this.

So it’s not unprecedented to overturn a Congressional law, just one in the area of commercial regulation since around the New Deal, where most people agree it is commerce.  You know yesterday I thought the President couldn’t actually be ignorant enough to believe his words, especially given that he was a Constitutional Law professor at one time, but now I am not so sure.  For instance, Lochner is a 1905 decision, and the Supreme Court struck down many laws purporting to regulate commerce since then and indeed as pointed out in oral argument last week, Lochner concerned itself with state power, not Federal power.  And indeed several laws in the New Deal were also struck down.  I mean what Obama said is just bad history.

And of course Congress has asserted that the Commerce clause has applied to actions that were plainly not commerce, such as carrying a gun near a school or raping a woman.  Now, in those comments Obama seemed to be thinking of those cases when he said it was something that “I think most people would clearly consider commerce.”  Except that most people do not think that sitting on your keister and not owning insurance is commerce.

And what is really inexcusable about all of this is that he knew sooner or later he would be asked about these comments, so he had to have given them some thought, but even then he decided to half-ass the thing.

And it is still a not-very-subtle threat.  We know by now that the reason why the Supreme Court stopped challenging the other branches of government was because FDR threatened their judicial independence with a court-packing scheme.  So all this talk about how it hadn’t been done since the New Deal is plainly a reference to that threat.

And its toothless, too.  Most of the American people do not think this law is constitutional.  And a sizeable chunk of the American people won’t have an opinion on the subject, but will instead trust that the Supreme Court is right so if the Supreme Court declares it to be unconstitutional, that group will decide the Obamacare violates the Constitution.  I consider that a servile way of thinking, but it undeniably exists.  And then you have the crowd that would say somehow it is unconstitutional to strike Obamacare down—but would they even really believe it?  These are often the same people who claim with a straight face that the evangelical Christians who wrote the Fourteenth Amendment were open minded enough about gay people as to have intended—but forgot to write down—a right to gay sex in that amendment.  How many of them even believe what they are shoveling when they say that?  So how much actual outrage are we talking about here?

Anyway, regardless of his walk back, this was either too late or not good enough for the Fifth Circuit which is hearing its own Obamacare challenge right now:

In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president's bluff -- ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.

The order, by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, appears to be in direct response to the president's comments yesterday about the Supreme Court's review of the health care law. Mr. Obama all but threw down the gauntlet with the justices, saying he was "confident" the Court would not "take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."

Overturning a law of course would not be unprecedented -- since the Supreme Court since 1803 has asserted the power to strike down laws it interprets as unconstitutional. The three-judge appellate court appears to be asking the administration to admit that basic premise -- despite the president's remarks that implied the contrary. The panel ordered the Justice Department to submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power, the lawyer said.

Greta Van Sustern has an image of the letter sent, but since it refers only to the questions during oral argument, and I can’t find a link to that, it’s not very illuminating.  You can read her notes on listening to the oral argument and I am willing to bet she will have audio tonight on her show.

Update: Google is my friend!  I just found the audio that appears to be it.  I will update when I get a chance to listen to it.

And they are specifically asking for a three page single spaced letter.  So really it is almost like an essay assignment as punishment that you might have seen in elementary school where you have to write x number of paragraphs explaining why you should not throw spitballs at other students, or something.

Update (II): I had a chance to listen to the audio from the Fifth Circuit.  I am listening on windows media player.  But if you go to the 18:00 mark you are pretty close to the beginning of this.

You can tell that when they ask her about the power of judicial review that the question is completely out of left field for her.  Here’s my somewhat editorialized transcript, but if you listen for yourself, I think you will confess to my accuracy:

Q: Let me ask you something a little more basic…  does the Department of Justice recognize that courts have the authority in appropriate circumstances to strike down a statute because of one or more constitutional infirmities?

Long pause.

A: Yeee—es your honor.

And here’s my slightly redacted transcript of her thoughts during that long pause, the accuracy of which I am equally confident:

What the f--- is he talking about?  Am I hearing him right?  Okay, go with it.

Really, it is borderline cruel what they did to this poor attorney.  It’s not her fault the President is saying these stupid things.

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Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

A Response to Patterico on the Lack of a Severability Clause in Obamacare

Patrick Frey and I are, unsurprisingly, friends, but I do respectfully disagree with a major point in his latest post.

We have been talking here since yesterday about whether, if Congress strikes down the mandate (or any other part of Obamacare), it should simply strike down the offending part, strike down the whole law or strike down only some parts.  And Patrick makes many good arguments for the idea that severing part of a law and saving the is just plain bad policy.  It’s a good post and I recommend reading the whole thing.

But in Patrick’s mind the lack of a severability clause should be determinative of this question.  And I think that’s not right.  He writes:

Here’s my reasoning: first, Congress knows how to put in a severability clause, and as Aaron has noted here on past occasions, these clauses generally appear in most legislation. And it very pointedly did not in the ObamaCare legislation.

And here is the problem: absent a severability provision, when you cut out part of a law, the part that remains is not the law that Congress voted for.

So to Patrick, arguing from a “textualist” perspective (that would be a Scalia-like devotion to plain text) the lack of a severability clause means they did not want it severed.  And there is some support in the law for that notion, including the expression unius rule, which I explain here.

But, first there is a problem with that.  Just as you can say that there is nothing in the law that says it can be severed, there is equally nothing in the law that says it can’t.  So Patrick’s hidden assumption is that the default rule is that unless Congress says it is severable, it is not.  And there are lots of good policy reasons for that.  But I think there is one controlling policy reason for why that should not be the rule.

An Indecent Federal Proposal: The Second Session in the Obamacare Argument Today

So this will be shorter because frankly I didn’t find this as interesting as the others.  You can read and listen to the argument here.

Almost twenty years ago a movie came out called An Indecent Proposal.  Anyone who was old enough to see an R rated movie at that time is likely to remember it but it’s been long enough that if you are not at least thirty-seven years old, you are far less likely to even know it existed.  It starred Woody Harrelson just when people were taking him seriously as an actor, and Demi Moore when she was a fast rising star, as well as Robert Redford when he was showing signs of age but most women considered him a very handsome man.  For all I know they still do.  Here’s the trailer:

(I love that song from Sade)

So the plot is that Moore and Harrelson are a happily married couple and Redford’s character offers them a million dollars to sleep with Moore.  As one wag put it at the time, millions of women would sleep with Robert Redford for a million dollars.  The only problem is raising the money.

Joking aside, though, as I listened to the second part of the day’s oral arguments, I found myself thinking of that movie.  I mean the provocative question in tht movie is “what would you be willing to do for a million dollars?”  I suppose we would have to adjust that for inflation, but there you go.  Or you might think of that old joke reportedly told by Groucho Marx.  It goes like this (borrowing significantly from this site):

Marx was seated next to an attractive and proper young lady and engaged her in conversation. Suddenly he says, “Would you sleep with me for a million dollars?”  The lady blushed, thinks about it, and said she would.  “Well, would you sleep with me for five dollars?”

“Certainly not!” she said, offended. “Just what kind of woman do you think I am?” 

“Madam, we’ve already established kind of woman you are. Now we’re just haggling over the price.”

So are you unwilling to do certain things no matter how much money is offered?  Or are you just waiting for someone to offer you the correct price?

The issue in this argument is kind of weird, because if the severability argument comes out the right way, it might be rendered moot.  It is also the first time I think Clement had some trouble before the court, but I think it was mainly because the argument is weak.

Basically one part of Obamacare says to states that they have to expand eligibility for Medicaid or else they might lose all Medicaid money.  And this, the states argued, amounted to coercion.

Severability, the Plain Text of the Eighth Amendment and the Meaning of Judicial Restraint: The First Session in the Obamacare Argument Today

So we arrive at the hidden booby trap in all of this, severability.  That is the subject of the first of two oral arguments today, which you can listen to, here.

As you all know, Obamacare is a massive bill.  Indeed you will see a couple comments related to its massiveness as we go through the argument.  So what happens to the rest of the law if only one part of it is found to be unconstitutional?

I mean imagine for instance if we have a law that says 1) flag burning is hereby banned, and 2) we will appropriate $40,000 for more FBI agents.  That’s all in the same law.  Now after Texas v. Johnson, the first part is clearly unconstitutional but equally obvious that the second part is not.  So does that mean that you have to throw out appropriations part of that law?

One thing to get about this, also, is that this is not a matter of law but of equity.  I will say in all frankness that I had no idea what equity meant in the judicial context before I started my legal training, so I assume that most non-lawyers have no idea, either.  So let me give you a quick primer (and if you are a lawyer feel free to skip ahead):

It has to do with the dual nature of our judiciary.  You see in England they started with the courts of law, which followed the common law (judge-made law) and whatever statutes were applicable.  The rules were fairly rigid, and the only thing you got were damages—that is, money.  I mean that is a gross over-simplification of things, but it serves as a reasonable thumbnail sketch.

Well, over time it was felt that it was not enough to simply give a person money when their rights were violated.  So somewhere along the way people started going to the Church of England and asking for more.  So the Chancellor who heard those cases would listen to both sides and tell one person or another to do X or else they would go to Hell.  Yes, literally.

Now all the judicial history is a little fuzzy to me but what I do know is that by the time America broke off from England these ecclesiastical courts became more like regular courts, at least in America.  For instance, up until really recently in Virginia, the systems were still semi-separate.  You would have the same judges in the same courtrooms, but on some days they would be chancellors sitting in courts of equity and on other days they would be judges sitting in courts of law.  And this would result in confusion where a court of equity would tell you to go to a court of law and the court of law would tell you to go to a court of equity.  Over time most states merged the systems together—including Virginia—so that same cases would rightfully contain both law and equity.  And of course long ago they stopped sentencing you to Hell for disobeying their injunctions, but instead would send you to jail.

I think severability has to be understood as an equitable doctrine.  I say this based on my understanding of the doctrine of judicial review—that is the idea of striking down statutes that do not jibe with the constitution.  First that popular phrase “striking down statutes” is actually a misnomer.  It makes it sound like the United States Supreme Court is going into the statute books and ripping the statute out.  When I read Marbury v. Madison, for instance, what I see is almost like judicial civil disobedience, the way Martin Luther King understood the term.  They aren’t saying that the law isn’t on the books, but they are saying that they will not help the other branches enforce an unconstitutional rule.  Indeed there is a strong parallel between Martin Luther King’s logic in declaring that “an unjust law is no law at all” and Chief Justice John Marshall reasoning that an unconstitutional law is no law at all.

But that approach is self-limiting.  In my hypothetical flag burning/funding for the FBI statute, judicial review gives the courts the power to say “we aren’t going along with that flag burning part” and refuse to enforce that law, but that doesn’t justify, by itself, refusing to honor that appropriation to the FBI.  So I think you have to understand the idea of severability—or more precisely the idea that certain parts of a law cannot be severed from another—as a matter of equity.

And that is important, because equity is weird and its reasoning does not sound very much like traditional legal analysis.  Of course in a real way it has been part of the judiciary from the beginning and lawyers are expected to be as versed in equity as they are in law, but it still feels outside of the law.  For instance in most cases courts sitting in equity will consider “the public interest” before granting equity.  That is not an appropriate concern in a legal matter (although that is often considered).  You have to weigh the harms of one party against the harms of another in equity.  You have to consider many mushy factors that just don’t apply to legal claims.

So for instance in Brown v. Board of Education the Supreme Court declared that racial segregation in schools was illegal.  Did that mean that the very next day every school had to desegregate or even potentially integrate?  No.  Because when it came to issuing injunctions declaring that a school shall stop discriminating along the lines of race, that became a matter of equity.  So in fact in legal circles, there are two Brown decisions.  In Brown (I), the court famously stated that this situation was illegal and in Brown II, the Supreme Court gave some guidance to the lower courts on how to begin to end school segregation.

So when the Supreme Court talks about severability the courts are given permission to consider things that ordinarily are things I don’t rightfully think they should consider, such as what is the best policy (the public interest) and the like.

By the way, once you understand the distinction between law and equity you will never read the Constitution the same way again.  For instance, this understanding brings new meaning to the familiar line in Article III, Section 2 that “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution...”  Or consider the Seventh Amendment, which states that “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved[.]”  Now, knowing about the courts of equity (if you didn’t before) you notice that by specifying the common law, as opposed to equity, they are implicitly saying that you do not have a right to a jury in a case at equity and that is precisely how the courts have read this provision.

Returning to the subject, I know that is a long introduction, but bluntly I am hoping it colors how you see this discussion going forward.

Now overall, I think on balance there is a weaker conservative majority favoring the idea that the entire law has to fall in this case.  And this seems to be a case where the courts would be “making new law” that is making a new rule.  This is not necessarily illegitimate even in a case at law, because the courts have always been allowed to make new law where the statute does not fill things in.  This is what we call the common law—judge made law.  And one of the best ways to convince a court to make new common law is to show them that their previous judge-made law did not adequately address the current circumstance.

As I discussed in my Patterico days the rule on severability was laid out in Buckley v. Valeo.  Buckley will come up several times during this discussion but in that case they struck down part of a campaign finance law and left the rest in place.  In that case, the Court said:

Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.

And I summed up that rule as follows:

So it’s a two part test: does the rest of the law even work without the invalid portion?  And if it does, is it still the case it is evident that but for this provision, Congress would not have passed this law?

Well, what many of the conservatives seem to be saying is, “that’s all well and good if you are talking about a provision in a law that is in the periphery.  So if we are talking about a 2,000 page budget appropriation where one Congressman put in a rider banning flag burning, it makes sense to invalidate that rider without throwing out the entire budge of the United States.  But this provision goes to the heart of the law, and it’s a different thing entirely to cut that out and expect the statute to limp on.”  I don’t believe that was something they said before, so it would be a case of making new law, but it is a reasonable evolution of the federal common law.

So let’s jump into the interesting passages.  Again the only ordering here is chronological, with one exception.

PSA: The Third Day’s Arguments Are Online (Update: Two Arguments Today, Second One Added)

Update: My apologies, but there were actually two oral argument sections today.  You can hear the second part, here.  As of this writing there is no transcript, yet, but I am sure that will change shortly.  Also see below for some analysis of the first part.


Update (II): The second part of the discussion today is about the expansion of medicaid.  This has to do with when the Federal Government can coerce states with financial incentives.  I will say bluntly I have not explored that issue as much as the mandate and severability, so I will write a post on the severability arguments first, and then listen to the second argument and see if I have any insight on that.  It might be the case that I have none.


And ultimately it might be irrelevant.  If the Supreme Court rules that none of the act can be severed, then this whole question becomes moot.  But I will confess to a certain amount of skepticism of the argument that somehow cutting off Federal funding is "coercive."


We now resume the original post, more or less as it was written.

This isn’t likely to be as “sexy” as yesterday’s arguments, but here’s the thing: in some ways it is more important.  They are talking about severability.  The issue is, if the mandate is unconstitutional, does that mean the whole law is struck down, or just part of it?  And that is important because if only part of it is struck down, the rest of it could be a potential economic disaster.

I wrote about the issue back in my Patterico days, here.  The short answer is this.  There is no severability provision in the law, which is a pretty big oversight.  So with no explicit guidance from Congress, the Supreme Court will default to a test of their own:

So it’s a two part test: does the rest of the law even work without the invalid portion?  And if it does, is it still the case it is evident that but for this provision, Congress would not have passed this law?

At least that is what they will do if they follow precedent.  But I really would be surprised if they blaze a new trail on this one.

Update: Having only listened to the first part of the discussion, I can see that the conservatives are toying with the idea of making new law.  They are arguing that the mandate is the "heart" of Obamacare, and thus it is inappropriate to be talking about severing the rest when you cut out the heart.  It also seems that even the liberals will want to sever out more than the mandate, if the mandate is struck down.  More will come.

And since I am a health lawyer, I think I can justify listening right now.  You can listen and read the transcript, here. [Update: bad link.  Fixed.]

Also to commemorate my analysis of yesterday's argument, let’s remember Nancy Pelosi’s response to the question of whether Obamacare is constitutional:

Yes, Nancy, they are serious.  And perhaps if you took your role as a guardian of our sacred constitution more seriously, we wouldn’t be in this position.

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Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

Of Federalism, Lochner and Broccoli: A Recap of the Second Day in the Obamacare Arguments

Okay, gang, so I listened to it (you can, too, here) and…  yeah, this looks pretty good for those of us who don’t like the mandate.  First, any hope that Scalia would uphold the law seems like a pipe dream.  And Kennedy seemed to be very troubled by this statute.

So let me show you the parts I found interesting or significant, for what it is worth, in chronological order.

Early on Alito highlights a theme of the anti-mandate forces: that this is not just about insuring that when you go to the hospital that you already have set up a method of paying for the care, but instead this is about subsidizing the health insurance industry generally by forcing people who wouldn’t buy insurance to buy it.  So it’s not really about solving a free rider problem alone:

JUSTICE ALITO:... Respondents -- the economists have supported -- the Respondents estimate that a young, healthy individual targeted by the mandate on average consumes about $854 in health services each year. So the mandate is forcing these people to provide a huge subsidy to the insurance companies for other purposes that the act wishes to serve, but isn't -- if those figures are right, isn't it the case that what this mandate is really doing is not requiring the people who are subject to it to pay for the services that they are going to consume? It is requiring them to subsidize services that will be received by somebody else.

GENERAL VERRILLI: No, I think that -- I do think that's what the Respondents argue. It's just not right. I think it -- it really gets to a fundamental problem with their argument.

Please note the Solicitor General is frequently referred to as “General Verrilli,” which is admittedly strange—I mean you picture generals only in military contexts—but it’s how it has been done for a while.

And early on Kennedy was hammering them with big doubts.  Indeed right out of the gate, we get this exchange:

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 then later on he gets to the really big issue:

JUSTICE KENNEDY: Could you help -- help me with this. Assume for the moment -- you may disagree. Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?

I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?

GENERAL VERRILLI: So two things about that, Justice Kennedy. First, we think this is regulation of people's participation in the health care market, and all -- all this minimum coverage provision does is say that, instead of requiring insurance at the point of sale, that Congress has the authority under the commerce power and the necessary proper power to ensure that people have insurance in advance of the point of sale because of the unique nature of this market, because this is a market in which -- in which you -- although most of the population is in the market most of the time -- 83 percent visit a physician every year; 96 percent over a five-year period -- so virtually everybody in society is in this market, and you've got to pay for the health care you get, the predominant way in which it's -- in which it's paid for is insurance, and -- and the Respondents agree that Congress could require that you have insurance in order to get health care or forbid health care from being provided -

PSA: The Second Day’s Arguments Are Online

And since I am a health lawyer, I think I can justify listening right now.  You can listen and read the transcript, here.

Update: I haven't listened to any of it yet, but Jeffrey Toobin is not optimistic:



Which makes me optimistic.  The early consensus, though is that Kennedy has left an opening to uphold it.  I think though, I will go into my Fortress of Solitude, see what I think unpolluted by the influence of others and let you know.

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Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

If You Want to Listen to the Obamacare Arguments—Or Read the Transcrtipts...

Here’s the place to do it.  Just to preview—not having listened to it at all—what they are talking about is a law that prevents challenges to tax laws before there is an attempt to collect.  So far there has been no attempt to collect.  Whether it is a “tax” or a “penalty” is significant also to the ultimate constitutionality of the law, too—in other words, it is not just a matter of a procedural bar, but it becomes much easier to justify it in the final analysis.  But it also would have the effect of kicking the can down the road, until well after the election.

In my opinion, the analysis of Judge Vinson on the subject is the absolute best.  You can read me commenting on it in a post back in my Patterico days entitled Judge Vinson to Congress: You Really Should Read These Laws Before You Pass Them.

Via Althouse, who saved me some googling today.

I’ll be listening to it tonight and sharing my thoughts.

Update: How’s this for a biased, “breaking news” email from Cnn:

Nearly one in three Americans thinks the U.S. Supreme Court should overturn the entire 2010 health care law signed by President Barack Obama, according to a new CNN/ORC poll.

The poll finds that 43% want to strike down only some provisions of the law and 23% think the court should leave it as it is.

Got that?  The lede isn’t the fact that the overwhelming majority of Americans think that the law is at least partially unconstitutional, it’s that only a third think that the whole law should be thrown out.  And given that that question is based on a more esoteric concept in constitutional law, I am not sure how much those numbers tell us.

By comparison, here’s the lede in the article at Cnn’s site, apparently based on the same poll:

Washington (CNN) – Most Americans don't want the Supreme Court to completely overturn the landmark yet controversial 2010 federal health care reform law, but only a quarter of the public wants to see the high court leave the measure alone, according to a new national survey.

That is a lot more neutral.  And by the way, Cnn, why is this a breaking news story?  It’s not an event that just happened, it’s just a poll.  Breaking news should be reserved for terrorist attacks and the like.  Not that you are the only ones to do this, but you are the ones I am talking about right now.

Interestingly enough, if you go into the detailed results, you find out that 50% of the population believes that the Supreme Court will make its decision based on its political views, and 46% believe they will base it on their objective interpretations.

So just to do the math, 73% of the public believes that the Supreme Court should strike down at least part of the law as unconstitutional, but only 46% of the public believes that the Supreme Court will follow the law.  That suggests that the best way to convince the people that the Supreme Court is following the law is to strike down part of the law.  So if the Justice Kennedy is driven by protection of the institution of the Supreme Court as I have argued, then he will vote to strike down only part of the law.

But the dilemma is this.  Striking down only the mandate would result in a catastrophe for the insurance industry.  Yes, Congress would have time to avert it, but do you think that the parties can work fast enough to do so?  Not frickin’ likely.  So the option that will enhance the prestige of the court the most would invite economic disaster.

Update (II): So I had a chance to listen and read, and I agree with numerous commentators that it looks like the Supreme Court was extremely skeptical of the notion that this was a tax and not a penalty—including some of the more liberal justices.  Now there is some wiggle room in that they were discussing whether or not it was a tax for purposes of a statute, rather than the constitution, and literally the same word might mean different things in two different laws.  But typically the Supreme Court likes to read the language of the law in a unified way, if only to make it easier for lay persons to understand the law.

Tune In Tonight for a Smart Preview of the Obamacare Oral Arguments

Yes, once again that is my pun-tastic way of saying I am going to be on John Smart’s radio show.  One thing that strikes me as funny when talking about him is that despite a wide political difference, on a lot of things we think very much alike.

I am going to be on around 9:15ish Eastern time, if you only want to tune in for me, but you know what?  Don’t.  He is truly an independent thinker and he has views worth listening to.  And if you care to listen, here is the link.  Supposedly people will be able to listen there, somehow, at the time.  And the topic will be previewing the Obamacare oral arguments.

I am actually seriously thinking of taking some time out to go and watch those arguments, except as I understand it they don’t let anyone just sit and watch.  They let you come in, watch for like 2 minutes and then shuttle you out.  Which really kind of misses the point.  But I believe they will release the audio of the hearing and I will definitely be listening to that as quickly as I can.

Just to preview, the one to watch is Kennedy.  While it is dangerous trying to read tea leaves like this, well…  we’ll probably do it anyway and his leaves are the one to read.  As one wag put it, this is Kennedy’s Constitution, and we just live under it.

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Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

Why Limbaugh’s Comments are Not a Fluke

So for the last few days there has been a dustup because Sandra Fluke testified before Congress about how she was a law student at Georgetown Law and she and other students had trouble affording birth control pills and the school, which is a Jesuit school, didn’t provide coverage.  Then Rush Limbaugh said this:

"What does it say about the college coed who goes before a congressional committee and essentially says that she must be paid to have sex?" Limbaugh continued, “It makes her a slut, right?  It makes her a prostitute. She wants to be paid to have sex."

And then he said this:

“So Miss Fluke, and the rest of you feminazis, here’s the deal. If we are going to pay for your contraceptives, and thus pay for you to have sex, we want something for it. We want you to post the videos online so we can all watch.”

And now we see that Limbaugh apologized, which I think is right.  Using birth control does not mean she is a slut, unless you think a woman is supposed to be chaste until marriage.  And no, this is not prostitution under the D.C. Code or any other jurisdiction that I know of.

But in a way, Obamacare and its mandates make this kind of thing inevitable.

We’ve all been there, 17 or 18 years old, and we get into a fight with our parents or maybe a sibling does.   “You can’t control me!” the near-adult says.

And the parent says, “as long as you live under my roof you will do what I say!”

For two hundred years we have understood intuitively that “freedom” and “independence” are closely related concepts.  Hell, when Destiny’s Child wanted to make a feminist anthem for the movie Charlie’s Angels, they called it “Independent Woman.”

Gerald Ford once said that “a government big enough to give you everything you want is a government big enough to take from you everything you have.”*  It also means that the government gets to scrutinize everything in your life.  It’s inevitable.  If someone has to pay for something, they are inevitably going to ask basic questions, like 1) where is this money going to, 2) is this the most economical way to spend the money, and 3) do you really need what I am being forced to buy for you?

Let’s take a less explosive example: Lipitor.  It’s a drug that reduces cholesterol.  If there was a mandate requiring Lipitor coverage for every single person, then the questions would start.  Why do you need it?  Are you eating right?  Are you exercising?  Or more rudely: why would I have to pay for your unhealthy lifestyle.

Or it might get really rude:

(Language warning.)

Fisking Erika Christakis; or “How You Are Infringing on my Right to a Pony”

So there is some howling today because over at Time Magazine, Erika Christakis has advocated that if you really feel strongly about opposing the employer abortion/contraception mandate, well you should go to jail for your beliefs.  Myself, I don’t find that to be that outrageous given that many Christian leaders have said they are willing to go to jail for their beliefs, but what I found interesting was the sheer illogic of her argument—really, a rationalization—for her position.  Let’s fisk this sucker:

There was lots of excitable talk last week about birth control, with President Obama dialing back his initial plan for mandating contraceptive coverage to exempt employers who object to such coverage on religious grounds. In those cases, the health-insurance provider, rather than the employer, will be on the hook to pay for the services.

And that is B.S. because the provider will then pass the costs onto the customers and employers.

Tellingly, health-insurance companies seem quite happy with this compromise, knowing, as they do, that paying for contraceptives is a lot less costly than paying for pregnancies and neonatal care.

First, wow.  You heard of death panels?  Well, apparently she favors “never be born in the first place panels.”  What a joyfully misanthropic sentence, arguing that all-in-all its just cheaper if we are never born.

And as a point of fact, the insurance companies are not so thrilled about this.

Despite the support of a healthy majority of Americans of all faiths, Republican presidential candidate Newt Gingrich inexplicably described the compromise as “even worse” than the original plan.

Well, those majorities are only obtained when people are asked questions that greatly distort reality, so again your polling is flawed.  And in any case, irrelevant.

And she goes on a bit pretending that this is purely about contraception (and not about things like the abortion pill), and talking about how out-of-control unwanted pregnancies are and then writes:

Is this really a time to try to limit contraception? What about the reckoning of the reality of human lives?

Except we are not contemplating a limit to contraception—or the abortion pill, for that matter.  No one is talking about prohibiting their use.  They are talking about whether to force a group of employers who previously didn’t provide contraception and abortion pill coverage to provide such coverage.  So we are not talking about reducing the availability of these treatments, just a failure to increase availability of them.

People who cry moral indignation about government-mandated contraception coverage appear unwilling to concede that the exercise of their deeply held convictions might infringe on the rights of millions of people who are burdened by unplanned pregnancy or want to reduce abortion or would like to see their tax dollars committed to a different purpose.

And there is what was implied in the last passage laid bare.  The right to contraception and the abortion pill in her mind is not merely a right to pay for it yourself, but the right to demand that other people pay for it for you.

Okay, then I have a right to a pony.  And therefore you must buy me a pony.  Now!

Once Again, the Obamacare Mandate is a Violation of Freedom of Speech

Update: Obama just announced his "compromise" which is pretty much what was predicted and as usual pretends everyone is playing politics, except him who rises above everything.  Right.

So all week there has been this uproar about the recent ruling that religious employers—like churches or church-based hospitals—would be required to provide “contraception,” a popular euphemism for a set of rules that include coverage for the abortion pill.  Last Sunday I was at a Catholic church and just about the entire homily (or “Sermon” to us Protestants) was reading off a letter in protest of this policy.  And today we get word of a weak “accommodation” where the religious based employers will not have to provide it in their insurance policies, but the insurance companies would still have to provide it to the policy-holders.

So how does that work?  Ordinarily insurance works by taking a large number of policy holders’ money and putting it into a pool and then distributing the benefits to policy holders.  Instead of that, it won’t be officially offered as part of these employers’ plans, but it will be part of the package of benefits they offer, paid for presumably by the common pool.  Which, gosh sounds like exactly the same thing but with the usual governmental layer of red-tape, regulation and bull____.

Of course that is only the rumor of the offer, and possibly even a trial balloon, so maybe that won’t be the final proposal.

But the funny thing is that I addressed this very issue a few months back and pointed out that this is positively a reason why the Obamacare mandate (to employers or individuals) is unconstitutional.  You see very often the argument against the mandate focuses on the idea that the Federal Government doesn’t have the power to force you to buy a good or service.  And they are certainly right.  But you can say more than just that the Constitution doesn’t affirmative grant the power.  You can say that the Constitution affirmatively prohibits the Federal Government from enacting such a mandate.  There is also a positive right not to buy a good or service from a private company, in the First Amendment.

There is, after all, a right to boycott.  As I wrote over a year ago when discussing the Liberty University case (a less-famous Obamacare challenge by Liberty University and scattered individuals):

Sanity Prevails on the Morning After Pill (But So Does Raaaaacism!)

This is a day old, but still of interest. For a few years it seemed like RU-486, a.k.a. the Morning After Pill was going to be made over-the-counter for all women in the current administration, a position I found incomprehensible. I mean let's put aside completely whatever one feels about abortion. Love it or hate it, let's ignore that moral component and focus solely on the issue of the woman's health.

I mean let me personalize this because it is personal. Early in my marriage, my wife was pregnant. We were very happy, so much so that I had a name picked out if it was a girl within a week and pretty soon we told her family the good news. And you know, in this Filipino culture it's an even bigger deal than it is in the culture I come from. And then literally the next day she miscarried. We probably are never going to have children, except very likely by adoption.

And you see, that is what an abortion is, an artificially-induced miscarriage. And having seen what an awful experience it was—I mean wholly apart from the emotions surrounding the loss of her baby, it was a real physical trauma and the hormonal shifts were rough—I am extremely skeptical of the claim that any woman should be getting an abortion without at least a doctor's prescription. But what the FDA proposed was beyond the pale. Right now a woman over the age of sixteen (meaning seventeen or older) can obtain the drug over-the-counter, while girls who are younger than that had to obtain a prescription. The FDA recommended changing the rule to allow all girls to obtain it over the counter and to the credit of Kathleen Sibelius, Secretary of Health and Human services, she overruled the FDA. And one need only read from the official press release to see how morally incomprehensible the FDA's position was:

The average age of the onset of menstruation for girls in the United States is 12.4 years. However, about ten percent of girls are physically capable of bearing children by 11.1 years of age. It is common knowledge that there are significant cognitive and behavioral differences between older adolescent girls and the youngest girls of reproductive age. If the application were approved, the product would be available, without prescription, for all girls of reproductive age.

And asking a girl who is only eleven years old to deal with a drug like this without any guidance from a physician seems insane. Again, putting aside what you think about abortion, and I suppose what you think about girls having abortions without their parents' consent, an eleven year old girl is just not ready to handle those kind of weighty issues.

Forget Death Panels, in Greece They Have Amputation Panels

For the big “WTF?!” headline of the day, it’s hard to beat this one: Greek Health System Opts for Amputation as Money-Saver.

Sebelius Turns on the Chilling Effect

Today my advice to any person in the health care industry is something I never thought I would say in a free republic.  If you value your business, you might consider shutting up.  As you know, I am corporate counsel for a health care company.  People who understand the business know that this is going to be a disaster—doubly so if the mandate is struck down, but not the rest of the law.

But Sebelius recently put out a warning:

It has come to my attention that several health insurer carriers are sending letters to their enrollees falsely blaming premium increases for 2011 on the patient protections in the Affordable Care Act.  I urge you to inform your members that there will be zero tolerance for this type of misinformation and unjustified rate increases.

And by zero tolerance, the WSJ explains, she means that she will lock you out of the insurance exchanges when they become the only monopoly in charge.

Oh, but don’t worry, the liberals will tell you, she will only apply that to people who are engaged in misinformation and unjustified rate increases.  But in First Amendment law, we have what is called the Chilling Effect.  It is the idea that those who speak do not want to fear even getting close to the line between permissible and impermissible expression.  It is the idea that some will be silent not because they wish to engage in unprotected speech, but because they are afraid their protected speech will be mistaken for the unprotected kind.  How far would you go, if you are afraid of losing your business?

Anyway, Ms. Sebelius, I will point out that before you can jackboot any insurance company out of business that if your monstrosity of a law survives judicial review (highly unlikely), you will discover that the courts will not let you do that sort of thing without due process of law.

But there is no better illustration of the principle, after Citizen’s United, that corporate speech must be protected speech, too.  We must stop treating it as second class.

There is no better argument before the Supreme Court that this monstrosity must be struck down.

And there is no better illustration of the observation of Gerald Ford: “A government big enough to give you everything you want is a government big enough to take from you everything you have.”