Over the last week or so we've been deluged with stories attempting to pre-emptively delegitimize the Supreme Court's decision on the ObamaCare health care law, the inappropriately named Affordable Care Act. The latest was from Roger Simon, writing at the ostensibly non-partisan Politico yesterday. He does so by quoting extensively from Jeffrey Toobin, whose viewpoints are wholly partisan. And from former Justice John Paul Stevens, who was on the losing side of the Bush-Gore election dustup in 2000.
At this writing, I do not know how a majority of the justices will rule on Obama’s health care plan, which was passed into law by Congress. Two branches of government have spoken, but their speech is but a whisper compared with the shout of our high court.
The die was cast in 2000. And it would take the most dewy-eyed of optimists to expect the court’s decision to be anything other than political.
Justice John Paul Stevens, now retired, wrote in his dissent in Bush v. Gore in 2000: “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”
That is a lot to lose. But we have lost it. And getting it back may be a long time in coming.
You see, if the court rules the individual mandate constitutional and allows the law to stand, then it's the correct decision and the members of the court were able to overcome their political slant. If they determine the mandate unconstitutional, then it's purely politics. It must be easy to be on the left. You're always correct, and any disagreement can only be because of political bias.
Recall, however, just how weak the arguments in favor of the individual mandate were in court. The same Jeffrey Toobin called them a "train wreck."
Today’s arguments focused around the central constitutional question of whether Congress has the power to force Americans to either pay for health insurance or pay a penalty.
According to CNN’s legal analyst Jeffrey Toobin, the arguments were “a train wreck for the Obama administration.”
“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,” Toobin just said on CNN.
And on the question of a limiting principle, Justice Steven Breyer got silence from Donald Verrilli. Remember also that there's no severability clause in the law, meaning that if any part is struck down the whole law should be by right. It's not the SCOTUS that wrote the law that way. Justice Antonin Scalia remarked that on the issue of severability it would be "cruel and unusual punishment" to require them to read the whole law and pick and choose how it should have been written. Recall also that the government did a poor job as well in arguing for the Medicaid payment extortion written into the law, whereby states would lose federal dollars entirely if they didn't expand their state program in a way acceptable to the feds.
The court’s divisions were on vivid display Wednesday during a discussion of the law’s Medicaid expansion, which gives states more federal money if they agree to enroll more of the poor. States can refuse, but only if they pull out of the program altogether.
The states challenging the legislation say that is not an option. The Medicaid program has grown so large that it is impossible to forgo federal funding and still provide medical care to the poor, they say.
"Nice state you got there. It'd be a shame if something were to happen to it." Of course, that's the Obama administration modus operandi, demonstrated this week against Arizona who had the temerity to try to control the flow of illegals across their southern border by applying federal laws.
So, as you read all the articles today screaming about the health care law being overturned (my prediction), remember just how weak the arguments were in its favor just three short months ago.
6/28/12 0935: More:
- Ace has a nice roundup, including a link to a Reason compendium of pre-emptive strikes.
- I agree with The Blogfather, and he with me.
- Gabe Malor at Ace of Spades addresses Mr. Toobin's nonsense in Roger Simon's Politico piece about the Roberts court overturning more legislation. Unfortunately for Mr. Toobin, he doesn't read the NY Times. From Mr. Malor:
Just three laws per term! Far, far from being "eager" to overturn legislatures, as hack Toobin dribbled, and obviously, indisputably playing no unusual role in "second-guessing laws," as Fallows alarmingly squeaked, the Roberts Court has been a model of restraint. Restraint is, naturally, one of Chief Justice Roberts' well-known characteristics and it was remarked upon during his confirmation hearings. One could even creditably call the Roberts Court the most restrained, incrementalist Court of the modern era. (I assure you, these numbers have not changed appreciably in the past two years.)
Should the mandate be overturned today, liberals will repeat their lie endlessly in order to cast doubt on the legitimacy of the Supreme Court and to tarnish the Chief Justice's good name. You know better. Do not believe this sad, angry lie. And do not let some foolish lemming repeat it in your presence. The truth is that the Roberts Court has been unusually restrained in overturning laws when compared to its predecessors.