A potential legal challenge to the Affordable Care Act flying under the radar

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Though ObamaCare survived it first Supreme Court challenge back in June in National Federation of Independent Business v. The Department of Health and Human Services , there are no fewer than 40 other legal challenges to the law currently in the court system. And though the ObamaCare penalty/tax for non-participation has not yet been applied (starts in 2014), the Uniformity clause in the Constitution may provide a new opening by which the law may be shot down once it is.

We've broken down the linked Wall Street Journal article in bullet form for easier consumption regarding how it is this may go down:

1. The Supreme Court ruled that Congress could not enforce the individual mandate in ObamaCare via the "commerce clause".

2. However, SCOTUS did rule that the individual mandate could be enforced by Congress as the penalty for not signing up for ObamaCare was not a "penalty" rather a "tax" which is enforceable by Congress.

3. SCOTUS also ruled that individual states were not compelled to enroll in ObamaCare's Medicaid expansion program nor are they compelled to set up the health insurance exchanges to assist individuals in purchasing health insurance. Thus far, 7 states (with more likely to follow) have chosen this route.

4. As written in the law, individuals who do not sign up for health insurance will be subjected to a "tax" which might make economic sense if the tax burden is less than the cost of health insurance.

5. If an individual wishes to participate in the Medicaid expansion program to acquire health insurance but resides in a state that has decided to "opt out", then that person will be subjected to the ObamaCare tax.

6. The Uniformity clause in the Constitution (Article 1, Section 8, Clause 1) requires the tax to be "be uniform throughout the United States."

7. And although the court has upheld as "uniform" taxes that affect states differently in practice, precedent makes clear that a permissible tax must "operate with the same force and effect in every place where the subject of it is found," as held in the Head Money Cases (1884). The ObamaCare tax arguably does not meet this standard.

ObamaCare is an ill-conceived and poorly-written law that, given the proper court challenges and courts that merely judge instead of legislate, may very well collapse under its own weight.

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Roger Clemens is the most dominant pitcher of all-time...

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... in the free agency era...

... as a right-hander...

... in the American league...

... not named Pedro Martinez...

They are given a shovel and they just keep digging and digging.


Yesterday, White House spokesperson attempted to clarify the President's remarks regarding the Supreme Court's "unprecedented" actions were they to overturn the individual mandate in ObamaCare.

What you are about to hear is one of the most painfully qualified explanations that remind us that being a White House spokesperson is most likely the most stressful jobs on the planet... that is, when the press is doing its job as it is here and you have to cover for some impertinent and factually incorrect comments made by your boss.

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OK, we get it. In sports, all-time lists and trivia questions are often framed with respect to "since the (AFL/NFL) merger (in 1970)" or "in the modern era (since 1900 for baseball)" but that's for convenience's sake and an attempt to provide some commonality across a time span; we're talking the law of the land now, however, which is not constrained by eras.

Central to this argument is a document that was put together and ratified over 220 years ago and which is still very relevant and which was also very clear in its letter and intent with respect to the limited powers it granted the federal government. And we're pretty sure those folks that put together that document would frown disapprovingly upon that federal government forcing its citizens to purchase a good or service from a private entity.

The hubris and pride of this administration prevents them from just dropping this issue altogether rather than continuing to look the fools they are with their continuing lame attempts to clarify and qualify a rash, petulant and factually incorrect statement.

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A post too late

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Fellow SLOB, W.C. Varones sent us a link to the President's SCOTUS/ObamaCare comments from yesterday as he felt said comments were tremendous fodder for a Sarah Sez segment such was their idiocy. We couldn't agree more, but alas, we ran with a straight blog post as we didn't see the link until it was too late. As a way of thanking W.C., we have published below what he said regarding those comments. Link to post can be found here (to save confusion, our running commentary will be designated by "ed. note:":

Does he think we don't remember what happened? And that we can't check facts on the Internet?

CBS News:

"Ultimately I am 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," Mr. Obama said in the Rose Garden appearance.

Strong majority? It passed 219-212 after months of backroom deals, bribery, arm-twisting, and lies. That's a strong majority?

(ed. note: And let's remember it took a Christmas Eve vote and a dangling of all sorts of goodies in front of Arlen Specter (D-R-D-PA) to get that thing snuck past the Senate.)

Unprecedented? How about the Flag Protection Act of 1989? It passed the House 380-38 and the Senate 91-9. Now that's a strong majority. And then the Supreme Court went ahead and precedented all over it.

Want another precedent? How about McCain-Feingold? That passed 240-189 and then got struck down by a Supreme Court that could read the First Amendment

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(ed. note: Why not start with the grand-daddy of them all with respect to judicial review: Marbury v. Madison? And if we extend the President's "activism" argument to its logical conclusion, might he have applauded the Dred Scott decision of the Supreme Court?)

I'm no Constitutional law professor, and I came up with those two precedents off the top of my head. What the hell are they teaching at Harvard Law?

Being willfully ignorant of historical precedent is bad enough. But Obama's statement indicates he doesn't even understand the basic concept of having a Constitution. His argument would mean that the Supreme Court and the Constitution are completely irrelevant and Congress can always do whatever it wants. If you went to Chicago and Obama was your professor for Constitutional law, you might want to take a refresher course.

(ed. note: The President is getting slammed for these comments and rightfully so. Despite his Harvard education, we can't imagine he is that ignorant of the fully-formed precedent for the court to rule laws of Congress unconstitutional if they see fit. We can only surmise, then, that he is using the bully pulpit of his office to intentionally mislead the American public to either a) influence the Justices towards a favorable decision in upholding the individual mandate or b) begin laying the defense plan should the Supremes strike down the mandate.

What is indeed unprecedented, or nearly-so if recent history is any indication, is a sitting President lashing out at the Supreme Court in this manner. And this isn't even the first time: recall the President whining about the Citizens United decision with the Supreme Court Justices in the audience during his State of the Union address in January of 2010.

The man is proving himself to be quite petulant to go along with this known ignorance and incompetence.)


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Constitutional scholar who has amassed unprecedented executive power worried about judicial activism or something

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The President opined on Monday with respect to the Supreme Court weighing the constitutionality of his signature piece of legislation, ObamaCare.

President Barack Obama took an opening shot at conservative justices on the Supreme Court on Monday, warning that a rejection of his sweeping healthcare law would be an act of "judicial activism" that Republicans say they abhor.

Obama, a Democrat, had not commented publicly on the Supreme Court's deliberations since it heard arguments for and against the healthcare law last week.

Known as the "Affordable Care Act" or "Obamacare," the measure to expand health insurance for millions of Americans is considered Obama's signature domestic policy achievement.

The President continued:

"And I'd just remind conservative commentators that, for years, what we have 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," Obama said.

"Well, this is a good example, and I'm pretty confident that this court will recognize that and not take that step," he said.

That's rich. We have here a man who collects unelected czars like baseball cards, who has enacted a program whereby U.S. civilians are killed without any traditional due process, who has nationalized a major portion of the domestic auto manufacturing industry, subverting the legally recognized bankruptcy process along the way, and who is now championing a law against legal challenge which was written entirely behind closed doors by lobbyists within the medical insurance industry and which is rife with kick-backs, sweetheart deals and outright bribes and which also gives the Secretary of Health and Human Services, someone no one voted for, unprecedented powers by which to execute said law; and the Supreme Court is supposed to listen to him when it comes to "unelected groups" and accountability?

The Supreme Court is looking at whether Congress exceeded its power to regulate commerce in U.S. states with that mandate.

"I think the justices should understand that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care," Obama said.

"So there's not only a economic element to this, and a legal element to this, but there's a human element to this. And I hope that's not forgotten in this political debate."

Allow us to translate: As economically unsustainable as this thing is, it becomes even more so if the mandate is eliminated. Any short or mid-term viability this thing has absolutely depends on laying a significant portion of the cost of it at the feet of people who won't even be using any of the health care system, i.e., the young and the healthy, his tugging at our heart strings, aside.

All of that, unfortunately for the President, should be moot as the central question the Supreme Court should be looking at is whether the federal government can force an individual to purchase a good and service from a private entity. That's what it comes down to because if the federal government can, what can it not force you to do?

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ObamaCare/SCOTUS update

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We generally do not like to news chase too much but we will make this exception for very obvious reasons.

The conventional wisdom from across the political spectrum is that ObamaCare suffered a pretty bad day at the conclusion of day 2 arguments heard from both sides before the Supreme Court:

Today was the main event at the Supreme Court, debating the constitutionality of the individual mandate. The Court’s audience, including more than a few members of Congress, was full for the marathon two-hour argument. Even near the back of the courtroom, I shared a bench with three senators — the Court’s VIP section was obviously inundated.

Solicitor General Verrilli had a rough start to his argument, speaking haltingly, stumbling, and stopping to take a drink. The solicitor general spent almost all his time trying to convince the justices that health care is, in fact, different from other markets. While Justices Ginsburg and Kagan were trying to throw him soft balls, Verrilli kept striking out with Justices Scalia, Roberts, and Alito, and to some extent, Kennedy.

Justice Kennedy was particularly concerned because, as he put it, the government bears a “heavy burden of justification” when a law “changes the relationship of the individual to government in a unique way.” From my reading, General Verrilli didn’t ultimately convince them, and Justice Kennedy returned to the issue several times. He asked whether the administration’s argument had any limits “at all,” and noted that the mandate “requires the individual to do an affirmative act,” a completely novel type of law.

Kennedy continued, expressing concern with the effects of the mandate and skepticism with the alleged constitutional right for Congress to compel you to purchase health insurance:

KENNEDY: Health care law “changes the relationship between the individual and the government in a very fundamental way.”

KENNEDY: Can you “create” commerce in order to regulate it? Suggests govt has “heavy burden” in health care case.

This exchange is particularly significant as it is generally felt that if the court splits 4-4, Kennedy is seen as the all-important swing vote.





Here's CNN analyst Jeffrey Toobin assessing the day's results:

CNN Legal Analyst Jeffrey Toobin, following Supreme Court arguments on President Obama's health care law, said on CNN that based on what he heard inside the Court, things didn't look good for proponents of the law.

"This was a train wreck for the Obama administration," he said. "This law looks like it's going to be struck down. I'm telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong... if I had to bet today I would bet that this court is going to strike down the individual mandate."

Toobin added that he felt that U.S. Solicitor General Donald Verrilli simply wasn't prepared for the conservative justices.

"I don't know why he had a bad day," he said. "He is a good lawyer, he was a perfectly fine lawyer in the really sort of tangential argument yesterday. He was not ready for the answers for the conservative justices."

Toobin also said he thought Justice Kennedy, the perennial swing vote, was a "lost cause" for supporters of the health care reform law.

Dude.


Obviously, no time to go uncorking the champagne yet, but it appears the ObamaCare mandate is facing some pretty long odds.

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Ugly has its day

From earlier today:

The Supreme Court ruled Wednesday that a grieving father's pain over mocking protests at his Marine son's funeral must yield to First Amendment protections for free speech. All but one justice sided with a fundamentalist church that has stirred outrage with raucous demonstrations contending God is punishing the military for the nation's tolerance of homosexuality.

The 8-1 decision in favor of the Westboro Baptist Church of Topeka, Kan., was the latest in a line of court rulings that, as Chief Justice John Roberts said in his opinion for the court, protects "even hurtful speech on public issues to ensure that we do not stifle public debate."

The decision ended a lawsuit by Albert Snyder, who sued church members for the emotional pain they caused by showing up at his son Matthew's funeral. As they have at hundreds of other funerals, the Westboro members held signs with provocative messages, including "Thank God for dead soldiers," `'You're Going to Hell," `'God Hates the USA/Thank God for 9/11," and one that combined the U.S. Marine Corps motto, Semper Fi, with a slur against gay men.

Our hearts go out to the families and friends of fallen service members who have had to endure the morally repugnant actions of these jerks from Westboro Baptist Church but this is absolutely the right call.

Free speech matters. And free speech still matters in this country.

Chief Justice John Roberts wrote the opinion for the court and Justice Samuel Alito was the lone dissenter.

The 8-1 split is an ecouraging sign for this country in that a right guaranteed by the very first amendment to the Constitution is held this importantly by both the left and the right. A 9-0 decision, however, would have been more preferable.

This carries cultural implications as well, we belive. Recently, in France, they have banned the burqa and even more recently a fashion designer there will stand trial for alleged anti-semetic rants he made in public. To Americans, the speech trial would appear to run counter to our concept of free speech.

The burqa ban is odder even still and is representative of a capitulation of the highest order. It is as if the French threw up their hands and cryed, "We give up!" in the matter of cultural assimilation. France's and much of Europe's embrace of multiculturalism painted themselves into a corner with respect to assimilation and when the Muslim immigrant population took this as a cue to not assimilate, reactionary policies such as the burqa ban and the Swiss flirtation with a minaret ban became the results that appear wholy un-American to us.

That is why this court decision and what the rest of the world would view as our completely radical concept of free speech are so important to the republic.

When Westboro Baptist sets up shop at military funerals, they are met by scores of counter-protesters including veteran biker groups. These folks came here to San Diego a couple of years ago and protested in front of The Rock church in Pt. Loma and were greeted by hundreds of countering gays, Christians, veteran, bikers, gay Christians, Christian bikers, gay vets, Christian vets, gay bikers... the whole lot, actively participating in democracy and "voting" in the market place of ideas.

If all 6 members of Westboro Baptist were simply hauled off to the slammer, our democracy is diminished as someone or something took care of the "problem" for us. Instead of an examination of what is being said and done which then results in those words and deeds getting trounced in the marketplace of ideas, the threat of being offended or seeing/hearing something unsavory is removed. Hold ridiculous and/or repulsive speech and ideas up to the light so they can be mocked and ridiculed for what they are.

A banning of "Thank God for dead soldiers" or the burqa does nothing to promote the shared cultural values of countrymen, be they native-born or foreign.

This notion that speech, even offensive speech, is protected is of paramount importance for a robust democracy and yes, for assimilation. We don't care what people wear but we do care what they believe.

So tying the ideas of free speech, American exceptionalism and assimilation all togther:

Wear your burqa, please. But please also embrace freedom of speech, religion, property rights and the rule of law and also embrace an allegiance to this country because all of this makes us who we are as Americans. If you cannot carry through on these beliefs, perhaps you would feel more comfortable living elsewhere.

And on it goes

The battle to preserve the cross atop the Mt. Soledad War Memorial took another turn after a decision by the 9th Circuit Court of Appeals ruled that the cross, as is, is unconstitutional.

The 20-year legal fight over the cross on Mount Soledad took another turn Tuesday when a federal appeals court ruled the towering landmark on public land in La Jolla is an unconstitutional sign of government favoring religion.

The ruling by a three-judge panel of the 9th U.S. Circuit Court of Appeals was a blow to cross supporters, who have been battling efforts in state and federal courts to get the cross removed.

For now, opponents of the cross have prevailed. They have argued the Latin cross is an impermissible religious symbol on public land. Supporters have countered it is a secular landmark amid a larger memorial that honors military veterans and has no explicit religious meaning.

The battle is likely far from over. The appeals court did not order the 43-foot monument removed but returned the case to federal court in San Diego to determine if the cross will have to be moved or if there is a way that it can be modified to pass constitutional scrutiny as part of the war memorial.

Here is what we wrote regarding the subject cross some 2-1/2 years ago:

It was also at this time that the cross that sits atop the Mt. Soledad War Memorial was probably in its gravest danger of being removed. After 18 years of legal warfare, it appeared that a couple of whiny atheists with nothing better to do might prevail and have the cross removed. Between the flag wavers and the specter of seeing a San Diego landmark and memorial to this nation’s fallen destroyed, we were nearly shaking with rage for about 3 or 4 days.

The separation of church and state argument didn’t fly. The cross is also a cultural symbol as well as a religious one. Americans of every religious or non-religious stripe recognize the cross as a symbol of sacrifice as well as that of the Christian church. The men who are memorialized made that ultimate sacrifice for their country and for the man next to them. Setting a cross atop a hill does not make a religious statement… it does symbolize, though, that the ground beneath is sacred because of the self-less sacrifices that have been made. Removing the cross desecrates that ground… it devalues the price that was paid. Ironically, we imagine the very people (and there are very few of them) that wanted the cross removed, we're besides themselves when the Taliban destroyed those Buddhist monuments in Afghanistan.

Given the context of where the cross sets and its standing as a community and cultural landmark, what reasonable person would conclude that it represents an endorsement of religion by the state?


The 50-page ruling was written by Judge M. Margaret McKeown:

But she held open the chance that the cross could stay, writing: “This result does not mean that the Memorial could not be modified to pass constitutional muster, nor does it mean that no cross can be part of this veterans’ memorial. We take no position on those issues.”

How does one go about "modifying" a cross so that it passes constitutional muster? Was there an amendment slipped into the constitution under cover of darkness on "non-endorsing cross construction"?

Obviously, stay tuned.



Exit question: Are we being somewhat hypocritical (as believers) in our general shoulder-shrugging attitude with respect to nativity scenes getting yanked from the City Hall front lawn as opposed to our indignation with respect to the Mt. Soledad War memorial cross?


P.S. The picture is of the annual Memorial Day ceremony held at Mt. Soledad and which we try to attend every year.

Hidden anti-Harvard bias exposed

Just when you think he might be slowing down a tad, he strikes back with a vengeance.

Despite her underprivileged background Professor Kagan rose to the challenge and graduated magna cum laude, an honor reserved for the top 89% of Harvard Law alumni. Although her diploma fully qualified her for any conceivable position in the known Asshole universe, she took her first paying job in the charitable sector -- teaching at the University of Chicago Law School, a lonely academic legal bullshit outpost in the harsh intellectual wilderness of the American Midwest. Her Asshole missionary work and softball skills quickly drew the attention of then-President Bill Clinton who, despite his Yale degree, was wise enough to see that she had 'the right stuff' to serve as his Assistant Deputy White House Under-Under Subsecretary for Minority Elderly Women's Domestic Pet Policy. Her leadership in that critical office was nothing short of revolutionary, increasing its bullshit report output by 15% while introducing colorful pie charts. From there she made a triumphant return to Harvard Law as a fully tenured faculty Asshole, eventually rising to Dean of Assholes where she introduced important reforms such as free student lounge coffee and banning the U.S. military war machine from campus. It thus came as little surprise that she was tapped by fellow Harvard Asshole Barack Obama to serve as his Solicitor General and Supreme Court nominee.

We rest easier at night knowing Iowahawk is on the job.

More free speech...

...more, more, more.

So, everyone has their panties in a wad over the Supreme Court decision on Citizens United v. FEC as some sort of assault on political free speech and democracy itself. The irony that the Supremes ruled against the government banning speech was not lost on us.

The concern that the floodgates of corporate cash will now be opened and poured into the body politic is laughable. That horse left the barn years ago.

Again, our refrain: You will never remove money from politics until you decrease the reach and power of politics/government by a corresponding degree.

Check out reason.tv’s take on the matter here.

Some random thoughts that may or may not be tangential to the State of the Union speech a couple nights back.

In bemoaning the Supreme Court’s decision to strike down portions of the McCain-Feingold campaign finance reform law, the liberal-Left and even some on the right have claimed the floodgates of money from corporations will overwhelm the body politic threatening American democracy itself. Funny how this fear of evil corporations is never, in the breathless rhetoric, extended to the unions of Big Labor to which the Supreme Court decision also applies.

Also, we all would scream bloody murder if Cogress ever tried to put speech restrictions on newspapers, and rightly so, but is not, say, the New York Times a corporation? Leaving the parsing of who can say what and when up to Congress would not be a favorable development for freedom and liberty in this country.
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B-Daddy wonders just how much of a Constitutional scholar one can be if said scholar vows to get laws passed to get around laws that… just got smacked down by the Supreme Court. Read more, here.

Said scholar, himself, eschewed public financing of his campaign to go swimming in oceans upon oceans of cold hard campaign cashe.

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More Cowbell?

Trust us, the irony that Obama’s supporters (including Obama, himself) who believe that one of his greatest traits is his oratory and communication skills, think that the reason Obama’s policies have not gained traction with the general public is because Obama has not been able to adequately articulate his positions is not lost on us.
(H/T: The Corner)
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And finally this:

(H/T: KT)

You’re kidding. This has got to be photoshopped, right? The teleprompter at the kickoff meeting for the Middle Class Task Force? But enough about the teleprompter how about that Task Force, huh? Retarded or condescending? You’re call. These people have proven thus far they don’t posses the collective wherewithal to fix a flat tire and now they convene a Middle Class Task Force? Guys, you’ve done quite enough already. Seriously. It’s OK, just leave us alone.