It doesn’t happen very often, but once in a blue moon you actually find a liberal exhibiting intellectual honesty and standing up for real principles. George State Law Professor Eric Segall has the audacity to tell the readership of Slate that, yes, Elena Kagan really should be recusing herself from participating in the Supreme Court decision on Obamacare. And he is dead right.

Doing the right thing is easy when nothing important is at stake. Doing the right thing is much harder when there is a lot to lose. Elena Kagan is a loyal Democrat who owes her Supreme Court appointment to President Barack Obama.* She is poised to review the constitutionality of Obama’s health care statute, which, if invalidated, might do serious damage to his re-election campaign as well as the Democratic Party. Even though it would be a hard decision to make, Elena Kagan should recuse herself from hearing challenges to the act.

So far it appears that only Republicans and conservatives want Kagan to recuse herself from hearing the case, while liberals and Democrats take the opposing view. I have been a liberal constitutional law professor for more than 20 years, and a loyal Democrat. I believe the Affordable Care Act is constitutional and that it would be truly unfortunate for the country (and the party) if the court strikes it down. I also recognize that there is a much greater chance of the court erroneously striking down the PPACA if Kagan recuses herself. That said, I believe that as a matter of both principle and law, Kagan should not hear the case.

But what are the odds that she has as much integrity as he does?

A little patience, and we shall see the reign of witches pass over, their spells dissolve, and the people, recovering their true sight, restore their government to its true principles. It is true that in the meantime we are suffering deeply in spirit, and incurring the horrors of a war and long oppressions of enormous public debt. If the game runs sometimes against us at home we must have patience till luck turns, and then we shall have an opportunity of winning back the principles we have lost, for this is a game where principles are at stake.
—From a letter to John Taylor of Caroline (June 1798)

Michael Barone cites 1,372 waivers from Obamacare, the NLRB’s intervention to prevent Boeing building an assembly plant in South Carolina, and an innovative attempt by the IRS to apply gift taxes to certain 501©(4) organizations guilty of supporting Republican candidates.

Punishing enemies and rewarding friends—politics Chicago style—seems to be the unifying principle that helps explain the Obamacare waivers, the NLRB action against Boeing and the IRS’ gift-tax assault on 501©(4) donors.

They look like examples of crony capitalism, bailout favoritism and gangster government.

One thing they don’t look like is the rule of law.

———————————————————-

Warner Todd Huston finds the same “Chicago Way” of doing things applies also to White House press pool access.

The Boston Herald recently found itself excluded from the press pool covering presidential visits. The Herald angrily reported finding out the reason for the ban.

The White House Press Office yesterday refused to address its policy on choosing local reporters for pool coverage, after the Herald was denied full access to the president’s Boston visit this week in part because the administration didn’t like the newspaper’s coverage. A press staffer’s e-mails cited a Mitt Romney op-ed that ran March 8 on the front page, challenging Obama’s policies the same day the president came to town for a fund-raiser.

One of the problems with appointing prominent members of a presidential administration to the Supreme Court is the issue that if litigation connected with a piece of legislation or executive order that official had a hand in crafting should subsequently occur, he (or she) might find it necessary to recuse himself from participation in the case.

Recusal is not an optional choice. 28 U.S.C. § 455 specifically states:

Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. ...

Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.

Supreme Court Associate Justice Elena Kagan has denied being involved in preparations for court defense of Obamacare while she was serving as Solicitor General, and declined to recuse herself from the Supreme Court decision of April 2011 refusing to “fast-track” for review Virginia’s lawsuit challenging Obamacare.

Judicial Watch sued under the Freedom of Information Act and has obtained documents suggesting that Justice Kagan may have a serious problem here.

According to a January 8, 2010, email from Neal Katyal, former Deputy Solicitor General (and current Acting Solicitor General) to Brian Hauck, Senior Counsel to Associate Attorney General Thomas Perrelli, Kagan was involved in the strategy to defend Obamacare from the very beginning:

Subject: Re: Health Care Defense:

Brian, Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues…we will bring in Elena as needed. [The “set of issues” refers to another email calling for assembling a group to figure out “how to defend against the…health care proposals that are pending.”]

On March 21, 2010, Katyal urged Kagan to attend a health care litigation meeting that was evidently organized by the Obama White House: “This is the first I’ve heard of this. I think you should go, no? I will, regardless, but feel like this is litigation of singular importance.”

In another email exchange that took place on January 8, 2010, Katyal’s Department of Justice colleague Brian Hauck asked Katyal about putting together a group to discuss challenges to Obamacare. “Could you figure out the right person or people for that?” Hauck asked. “Absolutely right on. Let’s crush them,” Katyal responded. “I’ll speak with Elena and designate someone.”

However, following the May 10, 2010, announcement that President Obama would nominate Kagan to the U.S. Supreme Court, Katyal position changed significantly as he began to suggest that Kagan had been “walled off” from Obamacare discussions.

For example, the documents included the following May 17, 2010, exchange between Kagan, Katyal and Tracy Schmaler, a DOJ spokesperson:

Shmaler to Katyal, Subject HCR [Health Care Reform] litigation: “Has Elena been involved in any of that to the extent SG [Solicitor General’s] office was consulted?...

Katyal to Schmaler: “No she has never been involved in any of it. I’ve run it for the office, and have never discussed the issues with her one bit.”

Katyal (forwarded to Kagan): “This is what I told Tracy about Health Care.”

Kagan to Schmaler: “This needs to be coordinated. Tracy you should not say anything about this before talking to me.”

Included among the documents is a Vaughn index, a privilege log which describes records that are being withheld in whole or in part by the Justice Department. The index provides further evidence of Kagan’s involvement in Obamacare-related discussions.

For example, Kagan was included in an email chain (March 17–18, 2010) in which the following subject was discussed: “on what categories of legal arguments may arise and should be prepared in the anticipated lawsuit.” The subject of the email was “Health Care.” Another email chain on March 21, 2010, entitled “Health care litigation meeting,” references an “internal government meeting regarding the expected litigation.” Kagan is both author and recipient in the chain.

The index also references a series of email exchanges on May 17, 2010, between Kagan and Obama White House lawyers and staff regarding Kagan’s “draft answer” to potential questions about recusal during the Supreme Court confirmation process. The White House officials involved include: Susan Davies, Associate White House Counsel; Daniel Meltzer, then-Principal Deputy White House Counsel; Cynthia Hogan, Counsel to the Vice President; and Ronald Klain, then-Chief of Staff for Vice President Biden. The DOJ is refusing to produce this draft answer.

Judicial Watch describes itself as conducting an ongoing investigation of the matter.

The documents obtained so far fail to produce absolute “smoking gun” proof that Kagan violated the law in failing to recuse herself, but all the evidence of collaboration over accounts is extremely suggestive.

Ace aptly observes:

Just a crazy question here—has anyone said “We’ve got to get our stories straight” when everyone involved was planning on telling the truth?

Are “coordinated” stories generally more credible than uncoordinated, unscripted ones? I guess the Obama White House thinks so.

“Coordination”

It’s a hip, smart way to say “lying.”

Let’s get this straight. We’re going to be ‘gifted’ with a health care plan we are forced to purchase and fined if we don’t, which purportedly covers at least ten million more people without adding a single new doctor, but provides for 16,000 new IRS agents, written by a committee whose chairman says he doesn’t understand it, passed by a Congress that didn’t read it but exempted themselves from it, and signed by a president who smokes, with funding administered by a treasury chief who didn’t pay his taxes, for which we’ll be taxed for four years before any benefits take effect, by a government which has already bankrupted Social Security and Medicare, all to be overseen by a surgeon general who is obese, and financed by a country that’s broke!!

WHAT COULD POSSIBLY GO WRONG?”

Larry Tribe was in great form in yesterday’s New York Times.

Nothing in his hands, nothing up his sleeve, now pay close attention as the law professor takes the interstate commerce clause and the American citizen sitting at home doing nothing at all and a federal mandate compelling Americans to purchase health insurance policies and magically causes the last two to fit within the former.

[P]redictions of a partisan 5-4 split rest on a misunderstanding of the court and the Constitution. The constitutionality of the health care law is not one of those novel, one-off issues, like the outcome of the 2000 presidential election, that have at times created the impression of Supreme Court justices as political actors rather than legal analysts.

Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?

Mr. Tribe fails to consider that perhaps key New Deal era decisions, like Wickard v. Filburn, which reached beyond actual interstate activity to assert federal authority over private activity which might affect interstate commerce, were unfaithful to the intent of the framers, casuistical, and wrong to begin with.

Mr. Tribe also simply discounts as irrelevant the fact that in recent years, the modern court has become considerably more serious and more respectful of the Constitution. The United States v. Lopez decision in 1995 represented a major change of direction.

Liberal constitutional jurisprudence has an interested double-joined quality. The actual language, meaning, and intent of the Constitution are to be looked upon as inherently factually unknowable, as cryptic apothegms from a distant and fundamentally alien civilization, open to creative interpretation and subject to being overruled by the privileged moral insights of the contemporary elect at will. But the windy and vaporous decisions of the New Deal court, ah! they are sacred and immovable compass points of Constitutionality. As Robert H. Jackson writes, so it must be forever.

Larry Tribe is clearly whistling in the dark, repeating a happy liberal fantasy offered by Sam Stein over at HuffPo last week, that Antonin Scalia will apply the same statism that went into his concurrence with the decision in Gonzales v. Raiches upholding federal criminalization of home-grown marijuana. Personally, I think Messrs. Stein and Tribe are mistaken.

Even if the Necessary and Proper clause can be adduced to support a federal system of interstate regulation in the case of marijuana prohibition, a federal law prohibiting a particular activity like the use of marijuana differs distinctly from a federal law imposing an obligation to perform an affirmative act, from a law making Americans purchase something. Upholding a federal power to forbid does not necessarily imply a belief in a further federal power to compel.

Mr. Tribe, I suspect, apprehends himself that distinction, since he finds it desirable to use his literary powers to transform the passive state of American citizens living their lives prior to the imposition of Obamacare into an active assertion of an innovative right.

Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law. Those judges made the confused assertion that what is at stake here is a matter of personal liberty — the right not to purchase what one wishes not to purchase — rather than the reach of national legislative power in a world where no man is an island.

It would be asking a lot to expect conservative jurists to smuggle into the commerce clause an unenumerated federal “right” to opt out of the social contract.

In reality, Americans have a social contract. It is a written one called the Constitution of the United States. That social contract forbids Obamacare.

From Ed Morrissey.

The Washington Times cherishes Senior United States District Judge Vinson’s use of Barack Obama’s own words in a footnote.

In ruling against President Obama‘s health care law, federal Judge Roger Vinson used Mr. Obama‘s own position from the 2008 campaign against him, when the then-Illinois senator argued there were other ways to achieve reform short of requiring every American to purchase insurance.

“I note that in 2008, then-Senator Obama supported a health care reform proposal that did not include an individual mandate because he was at that time strongly opposed to the idea, stating that, ‘If a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house,’” Judge Vinson wrote in a footnote toward the end [page 76] of his 78-page ruling Monday.

‘If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

Federal Judge Roger Vinson opens his decision declaring ObamaCare unconstitutional with that citation from Federalist No. 51, written by James Madison in 1788. His exhaustive and erudite opinion is an important moment for American liberty, and yesterday may well stand as the moment the political branches were obliged to return to the government of limited and enumerated powers that the framers envisioned.

——————————————
Don Surber found another of the best apothegms in the decision.

“It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.”

——————————————

Harvard researcher Mike Stopa, in the Boston Globe, argues that American’s concerns about bureaucratic rationing in a socialized heath system and the conflict of interest in end of life counseling sponsored by the government provider are entirely rational and legitimate.

Supporters of President Obama’s health care reform law have relentlessly derided Sarah Palin’s notion of “death panels’’ as a vulgar rhetorical technique, with no basis in reality, devised merely to scare a gullible, uneducated citizenry into rallying to repeal the law. The death panel notion persists, however, because it denotes, in a pithy way, the economic realities of scarcity inherent in nationalizing a rapidly developing, high-technology industry on which people’s lives depend in a rather immediate way. G.K. Chesterton once wrote that vulgar notions (and jokes) invariably contain a “subtle and spiritual idea.’’ The subtle and spiritual idea behind “death panels’’ is that life-prolonging medical technology is an expensive, limited commodity and if the market doesn’t determine who gets it, someone else will. ...

The resistance to incorporating end-of-life planning into Medicare is based on the rational fear that such planning will be used to coax patients into forgoing life-extending technologies that Medicare administrators may deem risky, of marginal benefit, or unlikely to succeed — an estimation that could be based in part on the cost of the technology.

Moreover, the suspicion that such programmed advance planning conceals ulterior motives is exacerbated by the fact that relatively few patients will ultimately benefit from it. It is mainly of value for those who do not die suddenly, who have no trustworthy relations to maintain their power of decision, and who lose their wits a potentially long time before their death.

Opposition to government-funded end-of-life planning does not imply ignorance of the indignity or discomfort of having one more tube placed into one’s body to buy an extra few days of painful life. (Although one can imagine concluding that dignity is a highly overrated virtue when the alternative is death). But when a massive government bureaucracy, tasked with determining medical “best practices’’ and controlling costs, announces a policy that “wellness visits’’ should have us chatting with our doctors about what technologically invasive, life-extending procedures we would just as happily do without, we are not supposed to be suspicious?

Read the whole thing.

Well, now that half of all the states in the Union are in court asking that the democrat Health Care Reform Bill be struck down as unconstitutional, it seems to me increasingly less likely that the Supreme Court will feel able to shirk making a historic decision.

[T]he newly elected governors of Ohio, Oklahoma, Maine, and Wisconsin have all decided to sue the Obama administration in hopes of stopping Obamacare. Specifically, Gov. Mary Fallin of Oklahoma has announced that the Sooner State will pursue its own case against the law, while Govs. John Kasich® and Scott Walker® (of Ohio and Wisconsin respectively) will add their states to Florida’s multi-state suit. And yesterday, newly sworn-in state Attorney General William Schneider announced Maine would also join the the Florida litigation. That brings the number of states on the Florida suit to 23 and the total number of states suing to stop Obamacare (which includes Virginia and Oklahoma) to 25.

Back in 1950, the American Medical Association was firmly opposed to socialized medicine. The same organization endorsed Obamacare in 2010 demonstrating just how far the country and its institutions and professions have declined.

The Weekly Standard tells us that Kathleen Sebelius’s Department of Health and Human Services has harnessed the power of the popular Google search engine to give the public a better opinion of Obamacare.

Try typing “Obamacare” into Google, and you’ll find that the first entry is now the Obama administration’s www.healthcare.gov. If you don’t particularly like that result, you’ll probably hate the fact that you’re paying for it.

You’ll get the same paid-for result if you type in “Obamacare facts,” “Obamacare summary,” “Obamacare info,” “Obamacare overview,” “Obamacare questions,” “Obamacare explanation,” “Obamacare basics,” “Obamacare pros and cons,” “Obamacare and elderly,” and even “Obamacare and abortion.” For each of these search terms, and many others, the Obama administration’s site comes up first, as a paid entry. But it doesn’t come up if you type in “ObamaCare repeal.”

Politico’s Ben Smith, in a post entitled “HHS Buys ‘ObamaCare,’” quotes an official from Secretary Kathleen Sebelius’s Department of Health and Human Services (HHS), who confirms that this clear attempt to influence what Americans read about Obamacare does, indeed, represent your tax dollars at work.

Via Christopher Taylor. Originaly discovered by George Scoville.

House Roll Call

Jeff Dobbs gleefully notes the margin for repeal comfortably exceeds the margin by which it passed:

March 21, 2010:
House passes health care bill on 219-212 vote

January 7, 2011:
House Votes to Repeal “Job-Killing” Health Care Law 236-181

In 2010, the Democrats passed ObamaCare by a 7 vote margin. In 2011, the Republicans passed the bill to repeal ObamaCare with a 55 vote margin.

Three out of four democrats voting for repeal were members of the 26 member Blue Dog Coalition: Dan Boren (2-OK), Mike McIntyre (7-NC), and Mike Ross (4-AR). Larry Kissel (8-NC), who also voted for repeal, is not a member.

Via Theo.

Reason’s Shikha Dahlmia seems to have identified what is very possibly the health care bill’s most alarming feature.

There are a great many things wrong with Obamacare, but the biggest is perhaps one that neither party is paying any attention to: It is one huge entrapment scheme that will turn patients and providers into criminals. ...

It has created a new interagency task force called HEAT (Health Care Fraud Prevention and Enforcement Action Team) under which health-care officials will collaborate with the FBI to go after Medicare fraud. In addition, it has expanded to several cities the Medicaid Fraud Strike Force that authorizes FBI and Drug Enforcement Agency agents to jointly analyze Medicare claims data in real time to detect and investigate irregularities by area doctors.

More chillingly, however, the administration is defining Medicare fraud down to include “unnecessary” and “ineffective” care. And to root this out, it plans to make expanded use of private mercenaries—officially called Recovery Audit Contracts—who will be authorized to go to doctors’ offices and rummage through patients’ records, matching them with billing claims to uncover illicit charges. What’s more, Obamacare increases the fine for billing errors from $11,000 per item to $50,000 without the government even having to prove intent to defraud.

This is utter insanity. And it has been caused by the transformation of health care into a government-controlled industry where the natural, self-regulating forces of the market have been badly subverted. There is nothing left but the coercive apparatus of the state to keep patients and doctors in line. This would be unimaginable where the customers receiving or contracting for services are actually the ones paying for it. If Whole Foods “overbilled” its shoppers, they would just go to Trader Joe’s. No one would think of summoning the police. If a mechanic submitted unjustified bills to All State Insurance for car repairs, All State would contract with someone else. There would be no need for an FBI stakeout.

Obamacare is pushing America down the road to serfdom, but neither its opponents nor advocates seem to have noticed. It is time for civil libertarians in both parties to wake up and strangle it before it strangles what’s left of American freedoms.

The obvious conflict of interest involved in the same government footing the bill under a socialist health system operating a system of “end of life planning,” incentivizing physicians to encourage patients to forgo treatment and medications, was identified by Republicans, particularly Sarah Palin, and subsequent public outrage led to what became widely referred to as “death panels” being removed from the actual Obamacare bill passed by Congress.

Dr. Berwick, in fact, very much resembles death panels himself, being similarly too radical to get through the Senate, and having become Medicare Czar and Federal Health Care Rationer-in-Chief via a recess appointment.

Thus, Barack Obama demonstrates how democracy and the Constitution can be exponentially evaded. What cannot possibly be achieved through legislation can simply be decreed as a regulation by an unconfirmable recess-appointee Czar.

New York Times:

When a proposal to encourage end-of-life planning touched off a political storm over “death panels,” Democrats dropped it from legislation to overhaul the health care system. But the Obama administration will achieve the same goal by regulation, starting Jan. 1.

Under the new policy, outlined in a Medicare regulation, the government will pay doctors who advise patients on options for end-of-life care, which may include advance directives to forgo aggressive life-sustaining treatment. ...

The final version of the health care legislation, signed into law by President Obama in March, authorized Medicare coverage of yearly physical examinations, or wellness visits. The new rule says Medicare will cover “voluntary advance care planning,” to discuss end-of-life treatment, as part of the annual visit.

Under the rule, doctors can provide information to patients on how to prepare an “advance directive,” stating how aggressively they wish to be treated if they are so sick that they cannot make health care decisions for themselves.

While the new law does not mention advance care planning, the Obama administration has been able to achieve its policy goal through the regulation-writing process, a strategy that could become more prevalent in the next two years as the president deals with a strengthened Republican opposition in Congress. ...

Several Democratic members of Congress, led by Representative Earl Blumenauer of Oregon and Senator John D. Rockefeller IV of West Virginia, had urged the administration to cover end-of-life planning as a service offered under the Medicare wellness benefit. A national organization of hospice care providers made the same recommendation.

Mr. Blumenauer, the author of the original end-of-life proposal, praised the rule as “a step in the right direction.” ...

After learning of the administration’s decision, Mr. Blumenauer’s office celebrated “a quiet victory,” but urged supporters not to crow about it.

“While we are very happy with the result, we won’t be shouting it from the rooftops because we aren’t out of the woods yet,” Mr. Blumenauer’s office said in an e-mail in early November to people working with him on the issue. “This regulation could be modified or reversed, especially if Republican leaders try to use this small provision to perpetuate the ‘death panel’ myth.”

Moreover, the e-mail said: “We would ask that you not broadcast this accomplishment out to any of your lists, even if they are ‘supporters’ — e-mails can too easily be forwarded.”

The e-mail continued: “Thus far, it seems that no press or blogs have discovered it, but we will be keeping a close watch and may be calling on you if we need a rapid, targeted response. The longer this goes unnoticed, the better our chances of keeping it.” ...

The proposal for Medicare coverage of advance care planning was omitted from the final health care bill because of the uproar over unsubstantiated claims that it would encourage euthanasia.

Sarah Palin, the 2008 Republican vice-presidential candidate, and Representative John A. Boehner of Ohio, the House Republican leader, led the criticism in the summer of 2009. Ms. Palin said “Obama’s death panel” would decide who was worthy of health care. Mr. Boehner, who is in line to become speaker, said, “This provision may start us down a treacherous path toward government-encouraged euthanasia.” Forced onto the defensive, Mr. Obama said that nothing in the bill would “pull the plug on grandma.” ...

The rule was issued by Dr. Donald M. Berwick, administrator of the Centers for Medicare and Medicaid Services and a longtime advocate for better end-of-life care.

We knew that already. Federal judge Henry Hudson ruling in the lawsuit brought by Virginia Attorney General Ken Cuccinelli agrees.

There is nothing in the Constitution granting Congress the power to make you buy health insurance. The case will obviously be appealed to the Supreme Court, and Justice Kennedy will almost certainly be the 5th vote killing Obamacare dead as Fogarty’s goat.

The Politico story

Steeh’s decision referred to a number of intellectually questionable precedents expanding the Commerce Clause outrageously through the use of casuistical reasoning.

As Judge Steeh not inaccurately observes, a body of precedent law exists sustaining congressional edicts based on the constitutional power to regulate interstate commerce effectively reaching all sorts of persons and activities not in fact engaged in Interstate Commerce.

Post New Deal jurisprudential understanding of the Commerce Clause limitation amounted to the Constitution forbidding congressional interference only in cases of individual persons or activities that could not be in any way, shape or form theoretically causally connected (even negatively) to the national economy or to rational goals of liberal policy by clever and well-educated attorneys.

Such a standard is, of course, completely nugatory and impotent to stop anything at all, and Judge Steeh abashedly alludes to the relatively recent, and distinctly innovative for their era, cases of Morrison and Lopez to establish the contrary. I smiled ironically upon reading that.

The plaintiffs have not opted out of the health care services market because, as living, breathing beings, who do not oppose medical services on religious grounds, they cannot opt out of this market. As inseparable and integral members of the health care services market, plaintiffs have made a choice regarding the method of payment for the services they expect to receive. The government makes the apropos analogy of paying by credit card rather than by check. How participants in the health care services market pay for such services has a documented impact on interstate commerce. Obviously, this market reality forms the rational basis for Congressional action designed to reduce the number of uninsureds.

The Supreme Court has consistently rejected claims that individuals who choose not to engage in commerce thereby place themselves beyond the reach of the Commerce Clause. See, e.g., Raich, 545 U.S. at 30 (rejecting the argument that plaintiffs’ homegrown marijuana was “entirely separated from the market”); Wickard, 317 U.S. at 127, 128 (home-grown wheat “competes with wheat in commerce” and “may forestall resort to the market”); Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) (Commerce Clause allows Congress to regulate decisions not to engage in transactions with persons with whom plaintiff did not wish to deal). Similarly, plaintiffs in this case are participants in the health care services market. They are not outside the market. While plaintiffs describe the Commerce Clause power as reaching economic activity, the government’s characterization of the Commerce Clause reaching economic decisions is more accurate.

Judge Steeh’s decision is a competent and professionally produced example of carefully reasoned liberal statism, and very much represents the Keep-the-Constitution-in-Exile reasoning that will be used to defend Obamacare when the various state lawsuits eventually reach the Supreme Court.

The New Federalism and Rational Basis casuistry will meet again in the nation’s highest court before terribly long.

Ilya Somin, at Volokh, pessimistically believes the mandate is more likely to be upheld than not.

I think we have the better reasoning and a narrow conservative majority on the Court, backed by a national negative consensus on Obamacare. I’m not so sure we are going to lose.

Via John Zebraitis.

James Capretta, at National Review Online, takes a look at the first six months of “reform.”

He finds the foundations well underway for massive bureaucracy resulting in the politicization of patient care decisions, with the Obama Administration engaging in disinformation campaigns and power plays, and making threats against the livelihoods of businesses affected which protest.

During the long national debate over the future of American health care, President Obama frequently chastised his opponents for launching exaggerated attacks on his plan for “reform.” He took particular exception to the criticism that the changes he was pushing amounted to a government takeover of the whole health sector. He knew full well that this kind of criticism might derail the entire effort in Congress, because most Americans recoil at the thought of a distant and bureaucratic federal government running the health-care system for everyone. So Obama vigorously denied that his program would lead to any such thing. In his Aug. 8, 2009, radio address, he described the “takeover” accusation as “outlandish” and characterized his approach as a mainstream and moderate attempt simply to reform the nation’s private health-insurance system.

It’s now been six months since Congress passed Obamacare — not a long time given the sweeping nature of the legislation and the long phase-in schedule for its most significant provisions. Even so, it is already abundantly clear that Obamacare’s critics were dead right: The new health law has set in motion a government takeover of American health care, and a very hostile one at that. The Obama administration’s clumsy and overbearing behavior since its passage proves the point.

Read the whole thing.

Louis Case, at American Thinker, points out that the complicated Machiavellian shenanigans needed to get Obamacare through Congress inevitably include the potential legal seed of the destruction of the entire bill.

Virginia’s lawsuit argues that the federal government has no constitutional authority to require individuals to purchase health insurance policies.

Virginia is asserting that certain portions (that is, the personal mandate) of ObamaCare are unconstitutional. If Virginia prevails, it leaves the question of what happens to the rest of the ObamaCare statute. This is where the concept of severance comes in. Normally, all comprehensive laws contain a boilerplate severance clause: it says that if any portion of the law is found to be unconstitutional, that portion is severed from the rest of the law—that is, the rest of the law stands.

But ObamaCare contains no severance clause. Virginia is asserting that if it prevails on its substantive claims, the whole law is unconstitutional. (If Virginia does not prevail, any one of the twenty-plus legal challenges have the same severance argument available.)

If a severance clause is normal boilerplate, why does not ObamaCare contain one? This is where Scott Brown’s election enters. Recall that the House passed its version of ObamaCare. On Christmas Eve, after much horsetrading and bribing, the Senate passed its version. The Senate version was not drafted to be in its final form; it was drafted to get 60 votes. Normally, these bills would be reconciled in a conference committee, and the final version would have to be voted on again with 60 votes in the Senate. However, before it could be sent to conference and reconciled, Scott Brown won in Massachusetts—a reconciled bill could no longer get 60 votes! That is why the House had to vote up or down on the Senate bill, which was basically a draft without the normal boilerplate inserted.

As Virginia argued in its Memorandum (Pages 24 to 28), the presence of a severance clause raises a presumption that Congress did not intend the whole statute to depend on the constitutionality of any particular clause. But with no severance clause, they are not entitled to that presumption. A court cannot sever the offending clause on its own if the statute would not function as Congress intended.

Michael Barone observes HHS Secretary Kathleen Sebelius demonstrating exactly what Obamacare is really about: Power.

“There will be zero tolerance for this type of misinformation and unjustified rate increases.”

That sounds like a stern headmistress dressing down some sophomores who have been misbehaving. But it’s actually from a letter sent Thursday from Health and Human Services Secretary Kathleen Sebelius to Karen Ignagni, president of America’s Health Insurance Plans—the chief lobbyist for private health insurance companies.

Sebelius objects to claims by health insurers that they are raising premiums because of increased costs imposed by the Obamacare law passed by Congress last March.

She acknowledges that many of the law’s “key protections” take effect later this month and does not deny that these impose additional costs on insurers. But she says that “according to our analysis and those of some industry and academic experts, any potential premium impact … will be minimal.”

Well, that’s reassuring. Er, except that if that’s the conclusion of “some” industry and academic experts, it’s presumably not the conclusion of all industry and academic experts, or the secretary would have said so.

Sebelius also argues that “any premium increases will be moderated by out-of-pocket savings resulting from the law.” But she’s pretty vague about the numbers—“up to $1 billion in 2013.” Anyone who watches TV ads knows that “up to” can mean zero.

As Time magazine’s Karen Pickert points out, Sebelius ignores the fact that individual insurance plans cover different types of populations. So that government and “some” industry and academic experts think the new law will justify increases averaging 1 percent or 2 percent, they could justify much larger increases for certain plans.

Or as Ignagni, the recipient of the letter, says, “It’s a basic law of economics that additional benefits incur additional costs.”

But Sebelius has “zero tolerance” for that kind of thing. She promises to issue regulations to require “state or federal review of all potentially unreasonable rate increases” (which would presumably mean all rate increases).

And there’s a threat. “We will also keep track of insurers with a record of unjustified rate increases: those plans may be excluded from health insurance Exchanges in 2014.”

That’s a significant date, the first year in which state insurance exchanges are slated to get a monopoly on the issuance of individual health insurance policies. Sebelius is threatening to put health insurers out of business in a substantial portion of the market if they state that Obamacare is boosting their costs. ...

The threat to use government regulation to destroy or harm someone’s business because they disagree with government officials is thuggery. Like the Obama administration’s transfer of money from Chrysler bondholders to its political allies in the United Auto Workers, it is a form of gangster government.

Obama’s health care proposal is, in effect, the repeal of the Medicare program as we know it. The elderly will go from being the group with the most access to free medical care to the one with the least access. Indeed, the principal impact of the Obama health care program will be to reduce sharply the medical services the elderly can use. No longer will their every medical need be met, their every medication prescribed, their every need to improve their quality of life answered.

It is so ironic that the elderly – who were so vigilant when Bush proposed to change Social Security – are so relaxed about the Obama health care proposals. Bush’s Social Security plan, which did not cut their benefits at all, aroused the strongest opposition among the elderly. But Obama’s plan, which will totally gut Medicare and replace it with government-managed care and rationing, has elicited little more than a yawn from most senior citizens.

It’s time for the elderly to wake up before it is too late! ...

Today, 800,000 doctors struggle to treat adequately the 250 million Americans who have insurance. Obama will add 50 million more to their caseload with no expansion in the number of doctors or nurses. Indeed, his plan will likely reduce their number by lowering reimbursement rates and imposing bureaucrats above them who will force medical decisions down their throats. Fewer doctors will have to treat more patients. The inevitable result will be rationing.

And it is the elderly who rationing will most effect. Who should get a knee replacement a 40 year old or a 70 year old? Who should get a new hip, a young person or an old person? Who should have priority in the operating room a seventy year old diabetic who needs bypass surgery or a younger person? Obviously, it is the elderly who will get short shrift under his proposal.

Read the whole thing.
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Skeptical? Just read between the lines of this New York Times article by radical leftwing ethicist Peter Singer, no less, hailing government rationing of heath care as inevitable and a fine thing, too. Says Singer:

The debate over health care reform in the United States should start from the premise that some form of health care rationing is both inescapable and desirable.

With more than a trillion dollars in new taxes, falling primarily on small business owners and investors, as the Wall Street Journal explains:

(The) draft bill would impose a “surtax” on individuals with adjusted gross income of more than $280,000 a year. This would hit job creators especially hard because more than six of every 10 who earn that much are small business owners, operators or investors, according to a 2007 Treasury study. That study also found that almost half of the income taxed at this highest rate is small business income from the more than 500,000 sole proprietorships and subchapter S corporations whose owners pay the individual rate.

In addition, many more smaller business owners with lower profits would be hit by the Rangel plan’s payroll tax surcharge. That surcharge would apply to all firms with 25 or more workers that don’t offer health insurance to their employees, and it would amount to an astonishing eight percentage point fee above the current 15% payroll levy.

Here’s the ugly income-tax math. First, Mr. Obama has promised to let the lower Bush tax rates expire after 2010. This would raise the top personal income tax rate to 39.6% from 35%, and the next rate to 36% from 33%. The Bush expiration would also phase out various tax deductions and exemptions, bringing the top marginal rate to as high as 41%.

Then add the Rangel Surtax of one percentage point, starting at $280,000 ($350,000 for couples), plus another percentage point at $400,000 ($500,000 for couples), rising to three points on more than $800,000 ($1 million) in 2011. But wait, there’s more. The surcharge could rise by two more percentage points in 2013 if health-care costs are larger than advertised—which is a near-certainty. Add all of this up and the top marginal tax rate would climb to 46%, which hasn’t been seen in the U.S. since the Reagan tax reform of 1986 cut the top rate to 28% from 50%.

States have also been raising their income tax rates, so in California and New York City the top rate would be around 58%. The Tax Foundation reports that at least half of all states would have combined state-federal tax rates of more than 50%.

Mr. Rangel also wants to apply his surcharges to investment income like capital gains. So the combined effect of repealing the Bush tax cuts and the new surcharges would be to raise the tax on stock appreciation by at least 60%—to as high as 24% from 15% today. President Obama has been worrying about a capital squeeze on small businesses, but raising the capital gains tax would only further starve them of funds. ...

America’s successful small businesses would pay higher tax rates than the Fortune 500, and for that matter than most companies around the world. The corporate federal-state tax rate applied to General Electric and Google is about 39% in the U.S., and the business tax rate is about 25% in the OECD countries. So the U.S. would have close to the most punitive taxes on small business income anywhere on the globe.

(Some) calculations seem to ignore sales taxes, which are significant in many states. Because income earned will eventually be spent and thus subject to sales taxes, sales tax rates need to be combined with income tax rates to find the true tax wedge that distorts the consumption-leisure decision. Once sales taxes are included, a top earner in a typical state would face a marginal tax rate of about 55 percent.

So much for an economic recovery. If this monstrosity passes, get ready for many years of economic chaos and decline. Teach your kids how to ask “Will you have fries with that?” in Mandarin would be my advice.

When President Barack Obama tells you he’s “reforming” health care to “control costs,” the point to remember is that the only way to “control costs” in health care is to have less of it. In a government system, the doctor, the nurse, the janitor and the Assistant Deputy Associate Director of Cost-Control System Management all have to be paid every Friday, so the sole means of “controlling costs” is to restrict the patient’s access to treatment. In the Province of Quebec, patients with severe incontinence – i.e., they’re in the bathroom 12 times a night – wait three years for a simple 30-minute procedure. True, Quebeckers have a year or two on Americans in the life expectancy hit parade, but, if you’re making 12 trips a night to the john 365 times a year for three years, in terms of life-spent-outside-the-bathroom expectancy, an uninsured Vermonter may actually come out ahead.

As Louis XV is said to have predicted, “Après moi, le deluge” – which seems as incisive an observation as any on a world in which freeborn citizens of the wealthiest societies in human history are content to rise from their beds every half-hour every night and traipse to the toilet for yet another flush simply because a government bureaucracy orders them to do so. “Health” is potentially a big-ticket item, but so’s a house and a car, and most folks manage to handle those without a Government Accommodation Plan or a Government Motor Vehicles System – or, at any rate, they did in pre-bailout America. ...

[B]y historical standards, we’re loaded: We have TVs and iPods and machines to wash our clothes and our dishes. We’re the first society in which a symptom of poverty is obesity: Every man his own William Howard Taft. Of course we’re “vulnerable”: By definition, we always are. But to demand a government organized on the principle of preemptively “taking care” of potential “vulnerabilities” is to make all of us, in the long run, far more vulnerable. A society of children cannot survive, no matter how all-embracing the government nanny.

When I was young, eons ago, when dinosaurs still walked the earth, doctors didn’t turn people away because they didn’t have health insurance. When Doctor Jones ran into an indigent patient, he simply shrugged, took care of the patent, and figured that it was his turn to do something charitable.

What has changed isn’t human nature, but the intensity of our regulatory environment and our politics. Government tax policy gradually created a health care corporate regime in which people employed by big companies used to get any amount of health services for absolutely nothing.

When you don’t pay for things, you have no incentive to economize, so demand rose and health care costs dramatically escalated. Meanwhile, government went along giving away more and more free health care to the elderly. So a while back, it became a joint interest of government and insurance companies to do something to control costs.

They made a deal. Government would set fixed prices for procedures and services delivered via medicare, and insurance companies would only pay at those same (lesser) medicare rates. Hard cheese for doctors, of course, but hey! cost cutting is important.

We have since experienced a bizarre regime of increasingly reduced health insurance benefits, managed by occult fine print to bamboozle beneficiaries into thinking they have coverage until doctors and hospitals subsequently surprise them by balance billing. The balance is the difference between what insurance companies are willing to pay and what health care providers want to charge.

The current situation featuring constant covert fighting over dollars makes charity its victim, too. If a hospital or physician treats that derelict indigent for free, ahem! the eyeshade-wearing bean-counter in Mega Insurance’s head office contends that was only possible by adding extra unjustified costs to the services Mega is paying for, and Mega wants a refund. That refund, you see, is supposed to come from your uncle and mine in Washington.

Thus, Capitalism is busily greasing the skids as we slide into Socialism.

As Norman Markowitz in Political Affairs, a journal of “Marxist thought,” puts it: “After the Labor Party established the National Health Service after World War II, supposedly conservative workers and low-income people under religious and other influences who tended to support the Conservatives were much more likely to vote for the Labor Party when health care, social welfare, education and pro-working class policies were enacted by labor-supported governments.”

Passing Obamacare would be like performing exactly the opposite function of turning people into investors. Whereas the Investor Class is more conservative than the rest of America, creating the Obamacare Class would pull America to the left. Michael Cannon of the Cato Institute, who first found that wonderful Markowitz quote, puts it succinctly in a recent blog post: “Blocking Obama’s health plan is key to the GOP’s survival.”