28 Mar 2012

Tuesday at the Court Did Not Go Well for Democrats

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The constitutionality of Obamacare needs extreme assistance.

When professional spinners on the left like Peter J. Boyer start explaining why the Supreme Court’s killing of Obamacare would really be a good thing for Barack Obama’s reelection chances, you can kind of tell that the realization that the Supreme Court is not likely to rule their way has pretty well sunk in.

Apart from the fact that Republicans would lose their most animating issue in the presidential race, the overturning of the health-care reform law would free Obama of the burden of having to mount a broad defense of his health-care plan as a centerpiece of his campaign. The president, who can read polls, managed to absent himself from any public observance of the reform law’s second anniversary last week. A Supreme Court invalidation of the reform law’s individual mandate, the feature that Americans find most odious (PDF) would allow Obama to embrace the issue anew, focusing on those portions of the reform (such as the provision allowing families to keep their children on their policies until they reach the age of 26) that most people actually like. Obama’s Democratic allies, meanwhile, could hammer home the importance of deciding who will be making the next appointments to the Supreme Court.

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The Hill quoted a major liberal analyst, who was about as pessimistic on Obamacare’s chances as it’s possible to get.

Jeffrey Toobin, a lawyer and legal analyst, who writes about legal topics for The New Yorker said the law looked to be in “trouble.” He called it a “trainwreck 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 said Tuesday on CNN. “I think this law is in grave, grave trouble.

Toobin’s observation came on the second day of oral arguments at the Supreme Court over the constitutionality of the Affordable Care Act.

Earlier that day, Supreme Court Justice Anthony Kennedy, who could be the deciding vote on whether to uphold the law, told Solicitor General Donald Verrilli that there appeared to be a “very heavy burden of justification” on aspects of the law, according to The Wall Street Journal.

Toobin described Kennedy as “enormously skeptical” during the arguments Tuesday.

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SDD

It was Supreme comedy watching Verrilli get confused as he toggled between calling it a tax and denying it is a tax.

Near as I can tell from the transcript, justices Breyer & Ginsburg think a sufficient argument is “because Congress thought it was really, really necessary.” That is, there are virtually no constraints — even structural ones — on what Congress can do.

How can anyone who has gone to law school read the Federalist papers and conclude that the Constitution intended to allow Congress free rein? The whole reason the 9th and 10th amendments were submitted was because the Constitution wouldn’t have been ratified without those more explicit restrictions (which even Madison thought were redundant).



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