The Hits Keep Coming - ObamaCare Mandate Loses In Virginia Court

Folks who thought last week was Obama's worst yet better keep their scorecards handy:

Health Care Law Ruled Unconstitutional
By KEVIN SACK

A federal district judge in Virginia ruled on Monday that the keystone provision in the Obama health care law is unconstitutional, becoming the first court in the country to invalidate any part of the sprawling act and ensuring that appellate courts will receive contradictory opinions from below.

Judge Henry E. Hudson, who was appointed to the bench by President George W. Bush, declined the plaintiff’s request to freeze implementation of the law pending appeal, meaning that there should be no immediate effect on the ongoing rollout of the law. But the ruling is likely to create confusion among the public and further destabilize political support for legislation that is under fierce attack from Republicans in Congress and in many statehouses.

In a 42-page opinion issued in Richmond, Va., Judge Hudson wrote that the law’s central requirement that most Americans obtain health insurance exceeds the regulatory authority granted to Congress under the Commerce Clause of the Constitution. The insurance mandate is central to the law’s mission of covering more than 30 million uninsured because insurers argue that only by requiring healthy people to have policies can they afford to treat those with expensive chronic conditions.

The funniest reaction I have noticed is from Josh Marshall:

A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional.

No one?  It's not exactly one year to the day, but on Dec 9, 2009 the Heritage Foundation hosted an event with just that topic:

Today, The Heritage Foundation will host an event with Sen. Orrin Hatch (R-UT) discussing the constitutionality of the personal mandate to buy heath insurance. Also, Heritage will be releasing a paper authored by Randy Barnett, Nathan Stewart and Todd Gaziano arguing that this mandate is both unprecedented and unconstitutional. No where in the constitution is Congress granted the authority to mandate that individuals enter into a contract with a private party.

I am guessing they took that argument seriously, since they reprised it the following March and apparently persuaded many states Attorneys General, and now a Federal judge. Oh, well - I am sure no one Josh Marshall knows likes Sarah Palin, either, but I wouldn't take that as the final word on her political appeal.

However, the Times swims in the same water:

But the ruling was nonetheless striking given that only nine months ago, prominent law professors were dismissing the constitutional claims as just north of frivolous.

Oddly, the actual Times debate from nine months ago included experts on both sides of the question, including the aforementioned Randty Barnett.

The next sentence from Dr. Marshall contains an obvious brain-o:

And the idea that buying health care coverage does not amount to "economic activity" seems preposterous on its face.

Well, yes, but so what?  Buying health insurance surely is an economic activity (although it is customarily regulated by the states.)  The question at hand was whether not buying health insurance was an economic activity subject to Congressional oversight.

OK, enough wth the cheap shots.  ObamaCare's defenders needed to sweep the board; the Republicans only needed one victory.  From the WaPo:

It is one of 25 legal challenges to the federal law wending their way through the federal courts across the country. In two other lawsuits, judges sitting in Michigan and Lynchburg, Va., have found that the same provision of the law passed legal muster. A third judge in Florida is also weighing constitutionality of the individual mandate in a suit jointly filed by 20 states.

The statute's constitutionality will ultimately be determined by the U.S. Supreme Court.

The opinion is available at How Appealing.  Via Glenn, we also have a round-up at How Appealing and thoughts from Heritage.

WORDS TO LIVE BY FROM THE OPINION:

"Salutory goals and creative drafting have never been sufficient to offset an absence of enumerated powers".

 

Comments

[MarkO]

The single thing that worries me most about the entire episode is that more people are not frightened by the prospective reach of the Federal government.

[Captain Hate]

I agree MarkO; people seem to be numb to it.

[Ranger]

What hit me this morning is that the left should be just as afraid of the individual mandate as the right is. If it ultimately upheld as constitutional, then imagine how quickly the entire welfare state could be dismantled using personal mandates to replace government programs. Social Security could be phased out completely over a generation by simply mandating young people participate in retirement plans or buy private annuities or pay a fine. The non-old age benifits could be handled via manditory disability insurance.

Just a thought.

[MarkO]

"Robert Gibbs just went Orwellian, describing the mandate as “individual responsibility,”

It is a grand delusion to imagine that what you want someone else to do is simply that person's individual responsibility. It is a subset of the divine right of kings.

I've got to go clean my elephant gun.

[anduril]

Hmmmmm. There must be a ME angle here somewhere.

[Janet]

I've got to go clean my elephant gun.

Hahahaha!

[anduril]

Cool article about Netflix from Steven J. Vaughan-Nichols:

Who uses Linux and Open Source in Business?

Summary
Almost everyone. Linux and open-source software has become totally mainstream in big business.

Thanks to Glyn Moody, a UK-based technology journalist, I’ve just learned that Netflix is not only using, but also contributing, to numerous open-source projects. They’re in good company.

As Kevin McEntee, Netflix’s VP of Systems & ECommerce Engineering explained on a recent blog posting, Why we use and contribute to open source software, “Our budget, measured in dollars, time, people, and energy, is limited and we must therefore focus our technology development efforts on that streaming video software that clearly differentiates Netflix and creates delight for our customers. These limits require that we stand on the shoulders of giants who have solved technology challenges shared in common by all companies that operate at Internet scale. I’m really just articulating the classical build vs. buy trade off that everyone deals with when developing software.

McEntree continued, “We do utilize some commercial software but there is often the alternative choice of utilizing open source software, preferably open source software that implements an open standard. Open source software projects often originate as a labor of love by software developers who are tired of seeing a shared problem solved over and over again in one off solutions, or perhaps they realize that they can offer a more simple and elegant alternative to a commercial product. The great thing about a good open source project that solves a shared challenge is that it develops its own momentum and it is sustained for a long time by a virtuous cycle of continuous improvement. At Netflix we jumped on for the ride a long time ago and we have benefited enormously from the virtuous cycles of actively evolving open source projects. We benefit from the continuous improvements provided by the community of contributors outside of Netflix. We also benefit by contributing back the changes we make to the projects. By sharing our bug fixes and new features back out into the community, the community then in turn continues to improve upon bug fixes and new features that originated at Netflix and then we complete the cycle by bring those improvements back into Netflix.”

[anduril]

From Steve Sailer (file under, Who Needs Them Here?):

Does polygamy raise or lower IQ?

I don't have a definitive answer to that old evolutionary theory question, but I wanted to cite this one bit of data from that Iraqi terrorist who evidently tripped and blew himself up in Sweden:

In a recent profile he placed on an Islamic dating Web site, Muslima.com, the younger Mr. Abdaly appears as a tall, stern-looking, neatly dressed man standing in front of a white curtain, his dark hair cropped short, with a trimmed black beard.

“I am married since 2004,” he said on his dating profile, according to a translation of the original Arabic. He described himself as “very religious” and said that he had two daughters, aged three and one. “I want to get married again,” he said, “and would like to have a BIG family. My wife agreed to this."

[Charlie (Colorado)]

"HIT'EM AGAIN, HIT'EM AGAIN! HARDER, HARDER!"

[daddy]

Legal guys.

At a poor computer so unable to link.

At the Volokh Conspiracy website, one of the Kerr's has a story (number 2 or 3 from the top) saying this Judge's ruling is very easily seen as flawed.

If possible, could one of you guys link to it, and then dissect it for us non-Lawyer's, as to whether or not you guys think the Volokh argument is sound or is incorrect.

Thanks in advance. Just trying to learn.

[squaredance]

anduril: Gosh, you must have, like, 1k of them.

[NK]

Haven't read the decision, but will tonight. First impression, any judge that respects the constitution would have to invalidate the "individual mandate" which is really indentured servitude of younger citizens to finace health care for older citizens, under compulsion of a financial penalty if they don't buy the insurance. Second, when the Lefties scream -- activist conservative judge-- what they mean is they lost. What this judge did in terms of the order itself is an example of judicial minimalism and modesty. The Judge severed the unconstituional part of the law so as to not interfere with the constitutional portions, and there is no stay. That's up to the Supreme Court and the voters. This is how a conservative judge that respects the constitution and separation of powers behaves. Contrast this with the marriage and DADT judges, who are judicial fascists in robes.

[NK]

Anduril--

for the love of god, just go.

[Old Lurker]

Mark & Cap'n...I've been thinking about that passivity lately and my thoughts went there again yesterday on the other thread when Natural Rights vs Kings' rights came up. Also, I'm reading Distant Mirror about the 1300's in France and England that was mentioned here a month ago. In all of these contexts I'm impressed how sheep-like much of humanity has been and how easily they accept their lot in life so willingly. Watching the History Channel on the 30's in Europe and the East is not helpful to my frame of mind.

Then my thoughts jump to Reagan's restatement of Franklin's "...a republic if you can keep it" when Reagan noted that our liberties can be lost in a single generation if we allow it.

AoD's bot like reminder of public education's role in all this, stated much better and more often by Jim Ryan colors in the picture.

Janet's link last week to the Loss of Sweden video and our own SC justices' finding much to admire in the laws of other countries, including soon I am sure, Sharia Law, and....

Oh, hell, is the bar open yet?

[Stephanie]

Is Anduril really Gleen Greenwald in drag? It's so hard to tell...

[anduril]

Two comments at Volokh make sense to me:

GMUSL '07 Alum says:

I’ve had a chance to read Orin Kerr’s post, and it seems to me it has a fairly obvious and quite significant error. Orin Kerr assumes that the power granted to Congress by the Necessary and Proper Clause — “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers” — abrogates any constitutional limits that the Constitution imposes by only granting Congress’s enumerated powers.

Orin does not cite any authority for this conclusion: He seems to believe it is required by logic. But it is incorrect. The point of the Necessary and Proper clause is that it grants Congress only the power to use PROPER means within its Article I powers NECESSARY to achieve the ends listed in Article I. If you say, as a matter of “logic” or otherwise, that the Necessary and Proper Clause permits Congress to regulate using means that are not part of enumerated Congressional powers themselves granted in Article I, then the “AND PROPER” portion of the Necessary and Proper Clause is rendered a nullity.

Orin Kerr’s error leads him to assume away as a matter of “logic” what is an underlying question in the case. That is unfortunate, I think.

and

Tocqueville says:

Orin,
I realize you’re hugely disappointed in Judge Hudson’s blow in favor of a limited government of enumerated powers, and I’m sorry you’ve had to start your week off by reading it.

But I fear you may be starting to imagine things. The quote you provide from Judge Hudson is plainly concerned solely with ends. By stating that an individual decision “does not constitute the type of economic activity subject to regulation under the Commerce Clause,” he declares the ends of the law to be illegitimate, and thus no expansion of means, however slippery, can save it.

[Stephanie]

Drudge has changed the pic on his headline and it's even more pointed. LOL.

[Danube of Thought]

I'm pretty sure Judge Vinson in FL will come out the same way Hudson did.

At baggage claim; gotta go.

[Clarice]

I sat in on the Va AG's presser and he explained why the judge had not issued an injunction against the mandate and all the other provisions relating to it (the insurance provisions). He said the feds had given their word they'd abide by the judge's decision and so the mandate and the other provisions relating to insurance (n Va) are on hold even without a specific injunction, the judge relying on the feds' word to not enforce any of that carp.

[anduril]

More comment from Volokh:

Key points in Virginia v. Seblius
David Kopel • December 13, 2010 1:52 pm

...

2. Rejection of the theory that the decision not to purchase federally-mandated is an “economic activity” since the individual will almost certainly purchase health services at some time in the future. “Of course the same reasoning could apply to housing, transportation, and nutritional decisions. This broad definition of economic activity subject to congressional regulation lacks logical limitation and is unsupported by Commerce Clause jurisprudence.” Since Wickard and Raich involved the decision to initiate the activity of cultivating plants. p. 23.

3. Necessary & Proper “must be tethered to the lawful exercise of an enumerated power.” “The Minimum Essential Coverage provision is neither within the letter nor the spirit of the Constitution.” Therefore N&P can’t be used to rescue the mandate. p. 24.

4. Is the penalty defensible under the tax power? No. First, it is a penalty, not a tax. The distinction between penalties and taxes is still viable. Kahriger. Congress chose to characterize the penalty as a “penalty,” and changed earlier drafts which had called it a “tax.” pp. 32–36. Sunshine Anthracite Coal, Butler, and the Child Labor Tax Case remain good law. “Notwithstanding criticism by the pen of some constitutional scholars, the constraining principles articulated in this line of cases, while perhaps dormant, remains viable, and applicable to the immediate dispute. Although they have not been frequently employed in recent years, this absence appears to be more the product of the unprecedented nature of the legislation under review than an abandonment of established princples.” “If allowed to stand as a tax, the Minimum Essential Coverage provision would be the only tax in U.S. history to be levied directly on individuals for their failure to affirmitively engage in activity mandated by the government not specifically delineated in the Constitution.” pp. 32–36.

5. There are “no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a persons’s decision not to purchase a product....The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage provision would invite unbridled exercise of federal police powers.” p. 37.

...

[Extraneus]

I like Ranger's analysis. After all, if not buying something can be prohibited by an act of Congress, then there are lots of things they can tell us to buy, many of which we actually should buy, and if we did buy, could save the gov't lots of dough.

Health club memberships are another example, or guns.

[anduril]

Randy Barnett (a pretty respected constitutional litigator) comments:

Judge Rules Constitutional Challenges to Individual Mandate are Serious

Essentially, from day one, politicos like Nancy Pelosi and numerous law professors have been saying about the constitutional challenge to the individual mandate: “Nothing to see here folks, move along.” Today Judge Henry Hudson ruled, “there is something to see here folks, let’s stop and evaluate carefully.” That is a big step.

Since before the Senate passed its version of health insurance reform, constitutional law professors have been quoted as saying that any constitutional challenge to the individual mandate, and other aspects of the bill, are “frivolous.” Indeed, some of the state attorneys general were severely criticized by local Democratic politicians and pundits for joining on to the lawsuit and thereby “wasting tax payer dollars.” A few weeks ago, for example, I spoke with several reporters and columnists from Michigan to defend the Michigan AG from this very charge.

While today’s ruling by Judge Hudson did not decide the case on the merits, it did make at least one official ruling of importance: the constitutional objections to the individual mandate are serious and not frivolous. This is an essential implication of today’s ruling because, had they been frivolous, the motion to dismiss would have been granted. So, no matter what the outcome, today’s ruling vindicates the legal judgment of the Attorneys General of 2/5 of the states that there are serious constitutional questions about this claim of government power.

And, as Ilya already noted, today’s decision also vindicates the contention that this claim of power is unprecedented:

The guiding precedent is informative, but inconclusive. Never before has the Commerce Clause and Necessary and Proper Clause been extended this far. At this juncture, the court is not persuaded that the Secretary has demonstrated a failure to state a cause of action with respect to the Commerce Clause element.

This too is big.

[Captain Hate]

OL,

Off and on I'm reading Citizens by Simon Schama (who can be a douche at times but narrates things fluently at least, unlike the boring straight out Marxists) and what comes across is how quickly and unexpectedly crowds can go from support for the people in power to "off with their heads". In retrospect you can identify probable flashpoints but concurrently the people in power must've thought "WTF". Part of the problem was the filters through which all news was spread throughout the population. With the MFM an obvious filter is still in place but the internet makes it possible to bypass them fortunately; and also has filters of its own but at least alternatives are quickly available.

[bgates]

the judge relying on the feds' word

And if the feds aren't trustworthy, then Obama isn't the greatest intellect in the history of the world.

[Cecil Turner]

Hey Daddy, a very good counterargument to Orin's is above it (Initial Thoughts on the Virginia Health Care Ruling by Jonathan Adler). Basically that allowing the mandate under the "necessary and proper" clause makes enumerated powers meaningless, and that if the goal doesn't fit under an appropriate power (e.g., interstate commerce), then it's unconstitutional. I personally like that conclusion, but maintain the view that individual justices will find compelling reasons to support either side of it.

[Old Lurker]

True that, Cap'n. In Distant Mirror there are several times where the crowd went from dormant to off-with-their-heads in about a weekend. (Perhaps why the crowd shouting that to Charles & Camila last week... :-)

Your observation also explains the wistful looks our own Czars cast on the Chinese and Iranian filters on the Internet.

[Old Lurker]

If it's true as they say that our fear of snakes and sharks is something encoded in our DNA from our ancestors, do you think what content is left in royal blood in Europe reacts the same way to chants of "off with their heads"?

Just wondering.

[Clarice]

I think all the europeans who preferred to be serfs preferred to stay in Europe rather than get on the boat to the New World.

[Captain Hate]

OL, I neglected to point out that Citizens is about the French Revolution, although you may have surmised that or known it already.

Regarding your 3:36 comment, as well as earlier ones, I don't think it's prudent to make hypotheses about what goes on in the vacuum between Prince Charles's enormous ears.

[daddy]

Thanks Cecil.

I see that now, and also enjoy the comment by GMUSL '07 Alum at Volohk refuting Orin Kerr's point.

And way OT. Do you have a recommendation as to the best boots for long winter walks up here while keeping the feet from freezing other than big clunky bunny boots? Dogwalking Pup has changed my winter activity and my old Korean Winter Boots just aren't doing the trick anymore, as after an hour or so on frozen ponds my lil' piggies are screaming bloody murder.

[narciso]

I think Chuck carries the idiot gene from Charles 1, and that other fool Edward V11,
Having read Sebestyen's 1989, which id possibly the best backgrounder for the period,
it is a wonder, of course, it points out how
previous crisis like Chernobyl and the Rust
affair, were prologue to the event.

[anduril]

also enjoy the comment by GMUSL '07 Alum at Volohk refuting Orin Kerr's point.

don't mention it.

[Danube of Thought]

To me, the Achilles' heel in the mandate advocates' argument has always been that if the mandate is allowed on the basis they claim, then the enumerated powers become meaningless--a result that the framers of the text cannot have intended. (This is the point that Barnett and some others have been pushing ever since the law was first discussed.) It the congress can require a citizen to purchase insurance, then it can require him to purchase--or even do anything else it believes necessary and proper to carry out its duties in regulating interstate commerce.

Gonna be fascinating to watch it play out...

[Melinda Romanoff]

CH-

I heard that space has been named a Royal bird sanctuary.

[anduril]

Sensible commentary from Cato that frames the issues nicely:

Federal Court Declares ObamaCare’s Individual Mandate Unconstitutional

Posted by Michael F. Cannon

ObamaCare has always hung by an absurdity. ObamaCare supporters claim that the Constitution’s words “Congress shall have the Power…To regulate Commerce…among the several States” somehow give Congress the power to compel Americans to engage in commerce. This ruling exposes that absurdity, and exposes as desperate political spin the Obama administration’s claims that these lawsuits are frivolous.

This ruling’s shortcoming is that it did not overturn the entire law. Anyone familiar with ObamaCare knows that Congress would not have approved any of its major provisions absent the individual mandate. The compulsion contained in the individual mandate was the main reason that most Democrats voted in favor of the law. Yet the law still passed Congress by the narrowest of all margins — by one vote, in the dead of night, on Christmas Eve — and required Herculean legislative maneuvering to overcome nine months of solid public opposition. The fact that Congress did not provide for a “severability clause” indicates that lawmakers viewed the law as one measure.

Despite that shortcoming, this ruling threatens not just the individual mandate, but the entire edifice of ObamaCare. The centerpiece of ObamaCare is a three-legged stool, comprised of the individual mandate, the government price controls that compress health insurance premiums, and the massive new subsidies to help Americans comply with the mandate. Knock out any of those three legs, and whole endeavor falls.

Moreover, the individual mandate is not the law’s only unconstitutional provision.

These lawsuits and the continuing legislative debate over ObamaCare are about more than health care. They are about whether the United States has a government of specifically enumerated powers, or whether the Constitution grants the federal government the power to do whatever the politicians please, subject only to a few specifically enumerated restraints. This ruling has pulled America back from that precipice.

[MayBee]

Weren't the Hillary Care people afraid of the constitutionality of what they were doing?

[daddy]

I don't know what all these scientists are looking at, but I just did a careful survey of Mona Lisa's eyes and they don't say "L V "or "Dan Brown" etc.

To me they say "Bedroom."

KayyyyyyyyyRoooooooooo!

[cathyf]

It is a grand delusion to imagine that what you want someone else to do is simply that person's individual responsibility.

In fact that is not a bad statement about the issues. Insurance is where groups of people called "policyholders" band together under the agency of an "insurance company", and the courts enforce the contracts that the policyholders have with each other that the group's premium money will only be used to pay for claims from inside the group. In in universe where these contracts are enforced by the government, there is a totally natural penalty for not buying insurance -- if you don't buy insurance then you don't have insurance.

The law changed the rules by removing the natural penalty for not buying insurance, and replaced it with an artificial IRS-collected fine for a penalty. In other words, the law changed so that it is no longer against the law to steal health insurance from others, while substituting two things: 1) a requirement that everyone must buy health insurance, and 2) the moral argument that stealing is immoral.

Given that the individual mandate is a laughable sham of a penalty, the moral argument is all we have left -- so don't you go trashing that, too!

[Jane (get off the couch - come save the country)]

You guys have been here all day? I haven't been able to access the site since noon and it is the only one I had problems with.

[Extraneus]

Speaking of books about those days, In the Wake of the Plague: The Black Death and the World It Made, by Norman F. Cantor, was an interesting read. (Although it seems to have been mercilessly panned by the Amazon raters, so that shows how much I know.) Anyway, lots of stuff on how the probate laws came to be, since it was so complicated in those days due to heirs dying while cases were still being adjudicated.

[daddy]

BTW, Here's ">http://volokh.com/2010/12/13/the-significant-error-in-judge-hudsons-opinion/#comments"> the Link to the Volokh article I mentioned above and the commentI mentioned by GMUSL '07 Alum is the second one down.

[Melinda Romanoff]

daddy-

Baffin Technology boots are the only ones at which you should be looking. They make the workboots for the oil rigs up there, as well as sport boots for Todd's sport. You can probably get them locally, because mine I can get from only one CA on-line supplier.

They are the best, especially the Ice Paw technology, where they imbed fiberglass in the soles for traction on ice. Really works.

[daddy]

Thanks Mel,

Just out the door to REI and maybe the Army Surplus store.

[Melinda Romanoff]

You won't find them there, I don't believe.

Definitely not REI, member since '76.

[Clarice]

MayBee, In the back of my mind I believe Hillary rejected the mandate when she was drafting a new health care plan because she thought that was unconstitutional.
Cuccinelli says that because of all the newly elected Rep governors more states are expected to join the case in fla which should come close to 1/2* of the states contesting the law--a new first/

(* Might be less than 1/2 if you think there are 57 states.)

[centralcal]

lol, Clarice!!!!

[Extraneus]

Barbara Walters on Boehner’s tears: I think he might have an emotional problem

[Cecil Turner]

Do you have a recommendation as to the best boots for long winter walks up here while keeping the feet from freezing other than big clunky bunny boots?

No, sorry. I moved away so long ago I'm hopelessly behind the times (and never really caught up during my short return). The cold weather gear has changed dramatically in the last couple decades, and I'm unfamiliar: all I know is that it's gotten a lot better.

[Henry J]

Richard Epstein @ NRO:
"The key successful move for Virginia was that it found a way to sidestep the well-known 1942 decision of the Supreme Court in Wickard v. Filburn, which held in effect that the power to regulate commerce among the several states extended to decisions of farmers to feed their own grain to their own cows. Wickard does not pass the laugh test if the issue is whether it bears any fidelity to the original constitutional design. It was put into place for the rather ignoble purpose of making sure that the federally sponsored cartel arrangements for agriculture could be properly administered.

At this point, no district court judge would dare turn his back on the ignoble and unprincipled decision in Wickard. But Virginia did not ask for radical therapy. It rather insisted that “all” Wickard stands for is the proposition that if a farmer decides to grow wheat, he cannot feed it to his own cows if a law of Congress says otherwise. It does not say that the farmer must grow wheat in order that the federal government will have something to regulate."

LUN

[Janet]

Barbara Walters..married 3 times & had an affair with a married Senator. I guess that qualifies her to pass judgment on Boehner's emotional health.

[Old Lurker]

Thanks for the book rec, Ext. Those were interesting times.

[Extraneus]

Baba isn't qualified to pass judgment on much, but it sure seems to be a salvo from the left. Who it will hit is another question.

[Clarice]

The real DaVinci Code.

Apparently researchers have found tiny letters and numbers hidden in the Mona Lisa.

I got out my micro microscope and guess what I found:

"Ta ta Jane, Clarice Wins!"

Honest.

[rse]

Thanks Mel. Helpful info.

Boots advice is good too.

On topic I should be getting analyses from AHLA by tomorrow and will post the best.

[MayBee]

Ha, clarice!

(oh, and thanks for the memory confirm on Hillary. Wish I had a better way to look for that)

[Porchlight]

Tried to post, sorry if it goes through twice -

Looks like the tax cut deal has reached cloture in the Senate. Now the GOP squishes will be available to help wave through DADT repeal, DREAM act, START, you name it...

[MayBee]

OK, found this at Judicial Watch. Not about the constitutionality specifically:

“A Critique of Our Plan,” authored by someone with the initials “P.S.,” makes the startling admission that critics of Hillary’s health care reform plan were correct: “I can think of parallels in wartime, but I have trouble coming up with a precedent in our peacetime history for such broad and centralized control over a sector of the economy…Is the public really ready for this?... none of us knows whether we can make it work well or at all…”

[Charlie (Colorado)]

Here's Keith Hennessy on the tax deal.

[DrJ]

"Ta ta Jane, Clarice Wins!"

Jane and tatas in the same sentence? Tell me more!

/ducks/

[MJW]

I'm probably missing something obvious, but how can the Senate take up the tax deal first? It increases the estate tax, so it seems to be a revenue raising bill the must originate in the House.

[MJW]

..that must originate...

[Janet]

Are you referring to some kind of rules MJW? Our nation doesn't use those anymore.

[maryrose]

Porch:
I don't think the Dream Act makes it. I'm worried about START mainly because it's the on Obummer wants the most and Gibbs was apoplectic about it passing.

[Clarice]

http://pajamasmedia.com/blog/obamacare-individual-mandate-struck-down/

[MaryD]

Great job, Clarice!

[lyle]

"Are you referring to some kind of rules MJW? Our nation doesn't use those anymore."

Or they just make them up as they go along, same diff.

[Porchlight]

maryrose,

I hope you're right about DREAM...I am pretty worried about all of it, START especially.

[MJW]

After thinking about it, I can perhaps answer my own question. Since the estate tax will automatically increase if there's no congressional action, a bill that raises it to less then it would otherwise be might not be considered revenue raising.

[Clarice]

Thanks.Mary. I'm getting a big long in the teeth to do this breaking news stuff.

[Elliott]

I'm probably missing something obvious, but how can the Senate take up the tax deal first?

I haven't looked at the legislative history, but I expect the Senate took some unrelated House bill and turned it into the tax deal bill.

[Janet]

When did we start listening to people like Walters or Whoopi tell us Boehner or Palin are controversial or have emotional problems? Really, the world is upside down.

[lyle]

Obama's comments make you wonder: Who does he think he can count on when conservatives try to repeal the health care law, force cuts in programs he supports, investigate his administration down to the last pencil, and continue to denounce him as an un-American socialist?

- E.J. Dionne

I'll call your bluff, E.J.: To whom, exactly, would you turn to if you're contemplating abandoning you messiah? Sniveling little twat.

[Jim Rhoads a/k/a vnjagvet]

The bulk of Judge Hudson's decision restates in great detail the arguments of the parties. While his conclusions essentially agree with the Plaintiffs, the government's argument are presented in a respectful and straightforward manner.

I think we are looking at a crossroads in Constitutional interpretation with a polarized SCOTUS. Reading the Hudson opinion gives us a preview of the views of the four conservative/libertarian Justices on the Plaintiff's side and four liberal/max federal power Justices on the Defendant's side. As someone said in an earlier comment, Justice Kennedy's opinion will determine the outcome.

I know that I agree with the Plaintiffs, but the fact that Kerr agrees with the Defendant troubles me. Given the sharp difference of opinion among the scholars on the Volokh Conspiracy, I have no idea how this thing will come out.

[Jim Rhoads a/k/a vnjagvet]

Great article Clarice. You haven't lost a step.

[Ranger]

Clarice,

Very nicely done.

[peter]

How ironic. The vote of a single unelected judge will determine whether or not a socialist scheme opposed by 64 per cent of the people will stand. I tell you between this and the Stuxnet worm, I really do wonder how we survive without divine intervention.

[Extraneus]

Drudge is just cycling through the triumphant pics that followed the bill's passage.

He hasn't featured the big-gavel walk yet.

[Clarice]

Thanks.
Jim, Naturally, I've been with Barnett from day one on this.

I think if Kennedy and the libs care to undo it, they better explain where the line is or confess the Commerce Clause permits any damned thing Congress wants, even when Congress is Republican.

I think this will ultimately be decided politically. Insurance carriers have already been devising their own plans to deal with pre-existing conditions and
other such hings and are racing to the Hill with the alternatives in hand..and then the states are fighting this bloody murder and the public hates it.

Either the pols and courts overrule this or my monopoly on sharpened picket and portable tumbrels is going to make me very very rich.

[Clarice]

It still is likely IMO that there will be a political resolution before there is a judicial oe.
From NRO's The Corner. Here's Eric Canton:

" 'To ensure an expedited process moving forward, I call on President Obama and Attorney General Holder to join Attorney General Cuccinelli in requesting that this case be sent directly to the U.S. Supreme Court. In this challenging environment, we must not burden our states, employers, and families with the costs and uncertainty created by this unconstitutional law, and we must take all steps to resolve this issue immediately. '

Cantor also promised to pass “a clean repeal of ObamaCare” once the Republicans take over the House in January."

http://www.nationalreview.com/corner/255170/cantor-calls-direct-appeal-supreme-court-daniel-foster

[East Bay Jay]

No fair, dropping an EJ Dionne cut and paste in a non-EJ Dionne post, lyle! Tom will surely post on EJ's next submission, an OMG WE'RE ALL DOOMED HIDE YOUR CHILDREN FROM THE WINGNUTS column about the Obamacare court ruling.

Poor EJ. His career peaked in December 2008 with his 'capitalism is so over' column. Turns out that capitalism is our only hope (both for economic improvement and retiring EJ's column).

[MarkO]

Clarice, may your teeth continue to be long and sharp.

Good work.

[Captain Hate]

Baba isn't qualified to pass judgment on much, but it sure seems to be a salvo from the left.

Laura Ingraham and Tammy Bruce were both exhibiting dismay at the tan man's overactive tear ducts as well today. TBH I don't need any more sensitive new-age guys trying to run the country. BaBa should really shut her piehole until she corrects that horrendously unprofessional flaw in her speaking. She should've kept her other holes shut as well because we wouldn't be talking about her otherwise; unless we were discussing the weather/crop futures girl in some glorified crossroad.

[rse]

Janet-

I've mentioned Paul Kengor's Dupes here recently. He does an excellent job explaining Ted's troubling behavior with respect to the USSR. He even reproduces the letters and memos that document his case from various archives.

He points out that in the proposal to interview Andropov so he could make his case directly to the American people, Barbara and Cronkite were the 2 names explicitly suggested.

Jane, Dave and TC would especially like the picture of a drunk TK dancing at a Moscow wedding staged for his benefit to give him the proper impression of the "people".

[rse]

Porch-

Look at number 8.

LUN is a rating of the top 25 "best professors" colleges.

Off to look at the 25 worst.

[Danube of Thought]

I agree with Epstein's comment. I am certain there is no Supreme Court precedent that would compel a lower court to uphold this law. It could be upheld only by extending current law in a direction it has clearly been headed for seventy years, but it has never reached this far. The strongest thing it has going for it is the inherent reluctance of the courts to strike down congressional enactments. (Except, of course, hen they want to, as in the case of the Military Commissions Act.)

Kennedy probably decides it, and God knows where he will come out.

[Sara (Pal2Pal)]

rse: I caught Kengor on Book Notes over the weekend and it sounds like this book should be required reading - especially for those who were in high school after the 1970s. When he was talking about Frank Marshall Davis and his extensive FBI file, it made me wonder if he was still on their radar as Obama's grandfather stared hanging out with him and if Barack himself might be noted as they tracked FMD's activities.

[lyle]

Apologies for the Dionne dump, EBJ. At least it was brief.

[MayBee]

Woah.

Holbrook died. Sad.

[MayBee]

Sorry. Holbrooke.

[Danube of Thought]

Poor fellow--RIP.

[bgates]

the picture of a drunk TK dancing at a Moscow wedding staged for his benefit to give him the proper impression of the "people"

I read that three times thinking he'd must have made a truly miraculous recovery from chemo to be getting plastered at Potemkin nuptials already.

[centralcal]

Sorry to hear about Holbrooke.

I just saw this at Politico about our Ear Leader:

After showing up 20 minutes late in the briefing room Monday evening, President Obama spoke to reporters for two minutes about his tax-cut package moving forward in the Senate and then left, ignoring shouted questions.

So typical. Must have had a party to get to.

[MarkO]

Holbrooke. Too young. A painful demise. Sorry for his family.

[Extraneus]

The last thing the left wants people talking about right now is the health care act. No matter how Kennedy rules, it's bad for Dems. If he upholds it, they risk a Republican landslide in 2012. Either way, the bill is going down. Dems would probably be better off if the SC does the dirty work.

[Jim Rhoads a/k/a vnjagvet]

He at least had the decency to reappear to deliver a tribute to Holbrooke. BTW, how is a ruptured aorta diagnosed? How do you know when it's about to happen?

[Sara (Pal2Pal)]

Ambassador Richard Holbrooke has died

[Captain Hate]

I'll refrain from saying anything ill about the dead other than to say that I'm unaware of any situation in which I agreed with Holbrooke on any matters of foreign policy. I'm leaving open the possibility that I could've been wrong in all of those cases or that there might've been an inadvertent and unknown to me point of concurrence.

[Sara (Pal2Pal)]

how is a ruptured aorta diagnosed? How do you know when it's about to happen?

I don't know about ruptured aortas, but my best friend of over 40 years went to the doctor on a Tuesday, where she was told a small hole in her heart had been detected. All the doctor said was, "we'll need to watch that over the next couple of years." The next night she had dinner with her daughter after work, walked out of the restaurant, got in her car, and died of heart failure before she even got her seat belt on.

[Captain Hate]

BTW, how is a ruptured aorta diagnosed?

Just a barely educated guess, but it sounds like an aneurysm that you catch just by dumb luck.

[Captain Hate]

Sorry to hear about your friend, Sara.