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March 27, 2012



Can we record our predictions here? I will hedge until I listen to Kennedy's questions tonight. Winners won't be determined until the last week of June.


PS: TM-- many thanks for the Obamacare thread.


And TM's Bold Prediction is?


There is no way in hell that Roberts will vote for Obamacare.


He might Paul if the decision is 5-4 in order to appoint himself to write the decision.


Jane-- that's the way I'm leaning.kennedy is the decider ultimately. Great, a tenuous national moment in the hands of a drama queen.


If it's 5-4, can't he appoint himself to write the decision either way?


we knew before the arguments that Kennedy would be the swing vote. His questions should not be comforting to the AG. Yes, I know that argument comments are not a certain clue, but assuming Kennedy wants a place in history and to go out as a popular Justice, what better way then to stop this unpopular, ill-considered overreach of federal authority?


OK, my Dad warned me about playing with lawyer types, but...

Dems wanted to pass health care reforms, but they didn't wanna take the political hit of imposing taxes to fund their schemes.

As a political expedient they substituted a 'mandate' for a tax. The mandate forces all individuals to purchase health care or pay a fine.

That's about right, isn't it?

I think it's pretty well established that the government gets to impose taxes on me even if I don't like them but I've never had them force me to buy something yet.

I can't imagine that the court will bend the constitution just so that one party can sneak their favored goals thru congress via a semantic back door. If so, my house is gonna eventually be covered in Solyndra solar panels because it's someone's idea of 'good' energy.

I'll bet Roscoe Filburn thought he had them cold too though.

If they don't kill this thing, the Republic is lost.


jimmyk-- no. If Roberts votes as a dissent, he has no input in the majority decision text.

Danube of Thought

I have read, but not listened to, what I think are the relevant comments from Kennedy. I think he will conclude that in the health care industry, as distinct from all others (for now), the "heavy burden" of justification for a mandate is met. The "heavy burden" phrase will haunt our side, not theirs.

So as I said elsewhere, I'll go 6-3 uphold, with Thomas, Scalia and Alito dissenting.

And I'll spend the next three months praying that I am wrong.


DoT-- that's the way I lean after reading kennedy's statements. I want to hear them tonight before casting my prediction.


I’ve been in court a lot more than Jeffrey Toobin and I had arguments, federal, circuit, Supreme Court and hundreds of times before trial courts,” Reid said. “And the questions you get from the judges doesn’t mean that’s what’s going to wind up with the opinion.”

Harry Reid

Is Harry Reid a lawyer? A Constitutional lawyer? Full of shit?

We report. You decide.

Thomas Collins

-Plaintiffs have standing: 9-0.

-Case is ripe: 9-0.

-Anti-injunction tax act does not bar a decision on the mandate: 9-0.

-Mandate is beyond Congress' power: 5-4.

-Insurance provisions are severable: 6-3 (Roberts and Kennedy vote with majority; Alito, Thomas and Scalia dissent).

-Rest of ObamaCare is severable: 7-2 (Scalia, Roberts and Kennedy vote with majority; Thomas and Alito dissent)

-ObamaCare's Medicaid provisions do not impose unconstitutional conditions on the states: 8-1 (Thomas dissents)


If Roberts votes as a dissent, he has no input in the majority decision text.

I thought Jane was saying that he could vote to uphold if that makes it 5-4 to uphold, so that he could write the opinion. But then he's the deciding vote and could write the opinion either way. Perhaps I misunderstood.

Sandy Daze

I do not understand why Justice Kagan did not recuse herself; and I do not understand why her lack of doing so did not excite more comment from those in positions to say such.



I'm going with it being upheld, 5-4. I don't think Roberts will vote for this piece of crapola. But Kennedy would.



He wants to write the majority decision because that has the force of law.

what better way then to stop this unpopular, ill-considered overreach of federal authority?

I'm not as convinced as everyone that Kennedy did a huge shift with that last question. I'd still like to know the answer. And Kennedy has a record of wanting limited commerce clause power.


I say 5-4 to uphold. I think Kennedy folds in the end like a cheap suit.

It won't upset me too much because while I'd rather they overturn, a vote to uphold is the final nail in the coffin for Obama's presidency.


For comparison's sake, I wonder what sorts of questions Kennedy has asked during arguments in cases where he did not vote to uphold?


judges are funny about the law. I'm not so sure how this is going to go, especially after Kennedy's questions and Robert's comments.

Democrats are usually of the opinion that "the law is what I say it is".

However, this is such a huge reach even the liberal Justices must understand that this is a fundamental re-shaping of our national government, the power of that government, and of the relationship of the citizenry with that government.

It is, in some ways, akin to 1933, when Hitler was able to manipulate the Reichstag into passing the Ermächtigungsgesetz, or Enabling Act, which laid the final foundations for the Nazi dictatorship.

The Justices are not fools.Their job is to interpret law according to a Constitution that is pretty clear on the power of the State. That power has grown inordinately but yet I have to believe that in upholding this law they would have upheld our own Enabling Act.

Even Democrats have a threshold at which the denial of basic human rights is beyond the pale.This issue is that important, for if they can pass and uphold this law, they can then in future legislate a ham sandwich to be a cruller and it would stand up legally.


This whole thing is such an assault on reason, I just don't even know what to say. I hate it. I hate that it's the single biggest expansion of federalism and assault on individual rights in our history. I hate that it comes down to rarefied arguments of penalty in paragraph 6, tax instrument in paragraph 12. I hate that the 2000 pages of the Act aren't even a drop in the bucket given the Secretary Shall generate another 20,000 pages of bureacracy.

But most of all, I think, I hate that the whole thing is a lie - a pretense that this national insurance is in any way a solution to the purported problems of rising health care costs, or "fixing" the number of uninsured. This damn thing will cost us more, cover fewer people, and the quality of healthcare will degrade. It has one purpose and one purpose only: Set a precedent for Federal Intervention in everything and make it easier to hide more corrupt redistribution of our money.

But never mind all that. we've got our best legal minds working on the problem of convincing us that a contract in which one party is coerced really is okay THIS time, because health insurance is "different".

Pfah. I need a drink.


However, this is such a huge reach even the liberal Justices must understand that this is a fundamental re-shaping of our national government, the power of that government, and of the relationship of the citizenry with that government.

I don't think liberals in general see it that way, and I've seen little evidence that the liberal SC justices are any different. I think they take for granted a more-or-less unlimited reading of the commerce clause, and would regard an overturn as a fundamental re-shaping of our national government.


Amen, Alice.


Roberts would be the most despised man in America if he voted for Obamacare. The inside baseball aspect of getting to write the decision would be lost on the large majority of the public. He would, rightly, be considered a traitor. There is no way he'll do that.

Not to make light that Obamacare is, after all, unconstitutional too.


I want it overturned but I think it will be upheld. If it is upheld, I agree with others that it will spell the end of El Jefe's term in office. I think a large majority will be incensed at this assault on freedom and will vote accordingly to change the regime to rectify it.

Jack is Back!

A continuation of the slippery slope of diminishing life, liberty and the pursuit of happiness: 6-3 in favor of the Regime. From that day forward all subjects of the land will be require to bow before the eternal God of Authoritarianism.

Until that is the Etch-a-Sketch guy storms the ramparts and takes over the castle.

The Road to Serfdom is paved with bad decisions.

Rick Ballard


I agree with you re Kennedy. I don't believe that he wants the sour stupidity of Kelo as his epitaph for his service on the court. I lean towards a concurrence in part with the majority to overturn. His dissent in part will constitute his epitaph and I'm at 50-50 on his vote re severability.


I hope the compromise will be the severability - Kennedy can strike the mandate and then say they can sever the rest of the law - since that is utterly impractical and will get our side out to vote in droves.


If Justice K thinks health care is a special case this time, won't it be energy next? And then something else?

And what happens when Bobby Jindal becomes HHS sec? Can he reverse all the "sec shall" regs?


And Yeh, what Alice said!


I think it is upheld 5-4 but it is an opinion based mostly on wishful thinking. Magical realism from the right.

OTOH, the oral argument seemed to go in the direction of striking the bill. That came as a shock to the Obamaites who, from their perches at Harvard, thought this was a really easy case. Things could have gone much worse.

Over at Ann Althouse's house, she was suggesting that the SG was deliberately throwing the game for some undisclosed secret plan. You know the story. If liberals do something stupid, it is somehow to be understood as brilliant. That said, she seemed to think the SG had lost the case. I found that an interesting admission.

Magic 8-Ball said "Outlook good." You really should get one of these. I use it with clients who want to know how their cases will turn out.

Rick Ballard


Do you check their credit rating before predicting a positive outcome or is it based purely on the size of the initial retainer?


I hope to God ThomasCollins @505 is right. My vote comes tonight after I listen to the Kennedy audio.

Frau Kapuze

This is about the limits of the United States government in the lives of all citizens.

I fear a passage will *not* be the end of Obama. The general population will roll over because they have been conditioned to believe if it's been decided by the SC that's the end of the road. The propaganda troops will begin telling us all how wonderful life will be even if we do not get to keep our own doctor or our present plan. I cannot think that a zillion of us will gather in DC to voice our anger.

If this can be forced on us, then anything can. We will have no choice.


Rick, you have given me two great ideas.


I read while I listened to the entire thing this afternoon. My impression is that Kennedy didnt really change his leanings in that last bit. Here is what he said directly prior:

"And the government tells us that's because the insurance market is unique. And in the next case, it'll say the next market is unique."

So, it seems to me that he doesnt buy the 'unique' argument because going forward every new case would be 'unique'. It also helps to look at the first half of the preceedings where the SG was categorically hammered by Kennedy and had to be bailed out multiple times by Soto/Kagan. I think this thing is going down.

Frau Kapuze

..."the Secretary shall..."

How about " citizen shall..."

Sovereignty or Submission?


The general population will roll over because they have been conditioned to believe if it's been decided by the SC that's the end of the road.

I hope you're wrong about this, Frau. I think this is way bigger than even Roe and people are very angry about it. Especially seniors.

Jim Rhoads a/k/a vnjagvet

I listened to the argument while reading the transcript, but lost patience after listening to the first few minutes of the NFIB's attorney.

I thought Clement was spectacularly good. Breyer, Sotomayor, Kagan and Ginsberg threw at him every argument they could think of and he hit both fast balls and curves out of the park. Kennedy and Roberts asked him a few questions, which he handled nicely.

If the case were decided on the quality of oral argument the mandate would be dead meat. The SG was mediocre and had trouble articulating answers to tough questions. I am sure this disheartened the liberal commentariat, as their reportage indicated.

But that's not how it works. There is no question that the lib 4 are solid pro-mandate votes. Essentially, they are persuaded that the cat has been out of the bag since Wickard, and that the only restraint on Congress's power is the political power of the vote

Scalia, Alito and of course Thomas were secure anti-mandate votes going in and did nothing to indicate they have changed their minds. That leaves Roberts and Kennedy. The tone and content of their questions did not give me much if any insight of where they will come down. I believe folks like Toobin were expecting those two would be more receptive to the SG's arguments than they appeared to be.

Frau Kapuze

I hope I'm wrong, too, lyle, and I am one very, very, very angry senior. It's not about healthcare for me-- I am *not* even eligible for Medicare! (CA teacher pension and not quite enough SS quarters). It's the power grab by those who are in the majority who are killing the future of the U.S.

According to the wording of the Constitution, the federal government has been granted the power to control commerce between the states. The Democrats' design seems to be that the federal government will be able to control all commerce everywhere, period.
I hope I'm wrong on that last, too.

Jack is Back!

Clarice (and all the other foodies at JOM),

Have you seen this new Jim Lahey recipe for a great pizza pie?

If I had an Egg it would be fired up by now.

Frau Kapuze

Yes, JiB, I saw that recipe in a magazine. It needs the usual Lahey 18-hour wait so it has to be started ahead of time.
You can also use a reg. oven with a pizza stone.

(Trader Joe's has cookie butter at a good price, too, and a bar filled with Specaloos.)


JayDee/JimR-- great reports on the audio, I look forward to listening. JayDee I really hope I hear the audio the same way you did.

Uncle BigBad

If Obamacare is upheld by 5-4, won't that start a firestorm about Kagan's refusal to recuse?


"I don't think liberals in general see it that way, and I've seen little evidence that the liberal SC justices are any different. I think they take for granted a more-or-less unlimited reading of the commerce clause, and would regard an overturn as a fundamental re-shaping of our national government."

Jimmk, this is the heart of the issue, isn't it?

Jim Rhoads, the Justices are nominated to uphold the law, and turning it into a pretzel after it is being challenged by a majority of the states would undermine the credibility of the Court, perhaps fatally.

I truly believe that all of the Justices know what is at stake here and they cannot wallpaper the cracks in a terrible law. One way or the other they must craft opinions that will not set the country afire.

There is a limit to the Commerce Clause. There must be. Otherwise, according to their own logic anything is allowable. To an extent, we have already seen a preview if over half the states have challenged the law. Only 11 states out of 34 started the Civil War.

It may come down to a new Constitutional Amendment, but the issue is truly fraught. Governmental power, whether in the executive or legislative, must have its limits.


UncleBB-- that's a good point-- Kagan being on the Bench this week is gross and has the appearance of improprietary. Now I understand that any nickle and dime Lib 'bam appointee would robotically vote to uphold Obamacare-- but the fact is she was part of forming the law, now she's voting on its constitutionality? Gross, just gross.


You should read some of those nclb state waivers if you want to talk about unconstitutional reach.

Federal insistence that the states engage in fraud upon their citizens accurately sums up what I have seen so far. Using the schools as weapons.

Health care is consistent with this mindset that only what is expressly allowed will now be able to occur for most of us.


"Have you seen this new Jim Lahey recipe for a great pizza pie?" No. I have his book which has a number of other great looking pizzas. I , however, am sold on Pter Reinhart's neo neopolitan pizza dough which is available in his most recent book and online.

Frau--I made the whole batch in the TM 4-5 balls depending on how big you make them ) in less than five minutes and they are all safely nestled in my freezer. You can also substitute about 20-30% of the white flour with whole wheat but as he explains you need to alter the amt of water if you do that.


About Kagan--I do not believe she had any hand in the writing of this law but only kept an eye on its passage thru the meat grinder to be prepared if necessary. In any event, she's the only one with the power to decide if she could recuse herself. It's pointless to make much of that, therefore.


I'd love to see the Republicans promise to reduce the amount of discretion they hand over to the executive to formulate the meaning of the crap they are passing. It's time Congress took back some of its power and responsibility.


Isn't it sad that despite what all commentators seem to view as the truly fascinating constitutional issues which this case raises, questions regarding whether there is any real limit on the scope of government action, and the possible ramifications of the court's decisions with respect to those issues, nobody doubts for a second how the lefty justices will "vote." No nuance, no deep analysis, no concerns regarding the possibility that one of those justices might decide that the prerogatives of government might be limited under our constitution. Nope. They will "vote" for the D team. Like a union election. Sad.


I did not listen to Kennedy, but I did read his questioning. And I heard Rivkin yesterday and he said Kennedy has been a rock on limitations of the Federal govt enshrined in the Constitution.

Zerocare goes down 5-4 despite Kagan failing to recuse herself. And I think the lack of a clause that address severability means it should fail in its entirety, but I am not sure Kennedy has the guts to go whole hog.


I used to think he was mostly harmless, in the big scheme of things;



Daily Caller republishes another Trayvon police report--there were 6 witnesses and it appears they backed up Zimmerman whom the police had originally considered charging.A three-page police report contains new details about the shooting death of Sanford, Fla. teenager Trayvon Martin. It discloses that George Zimmerman, who shot Martin on Feb. 26, was in custody on the scene and told police that he had tried, in vain, to find someone to help him with his own injuries.

The report, filed by Sanford police officer Ricardo Ayala and published online Tuesday by the Chicago Tribune, indicates that there were at least six witnesses — three men and three women — who saw or heard some part of the events that led to Martin’s death. They ranged in age from 19 to 56, and included five people described as “white.” The race of the sixth witness was listed as “O,” meaning “other.”



When I was a kid learning about government, I was led to believe that Supreme Court justices were like Roberts' analogy of baseball umpires: As long as they were good, they would rule according to the Constitution and the law, regardless of who appointed them. In the decades since, I have learned that this was complete b.s.


So does this sound different that it reads? Cuz this seems devastating to me:

JUSTICE KENNEDY: Well, then your question is whether or not there are any limits on the Commerce Clause. Can you identify for us some limits on the Commerce Clause?

VERRILLI: Yes. The — the rationale purely under the Commerce Clause that we’re advocating here would not justify forced purchases of commodities for the purpose of stimulating demand. We — the — it would not justify purchases of insurance for the purposes — in situations in which insurance doesn’t serve as the method of payment for service –

JUSTICE KENNEDY: But why not? If Congress — if Congress says that the interstate commerce is Affected, isn’t, according to your view, that the end of the analysis.

VERRILLI: No. The, the — we think that in a — when — the difference between those situations and this situation is that in those situations, Your Honor, Congress would be moving to create commerce. Here Congress is regulating existing commerce, economic activity that is already going on, people’s participation in the health care market, and is regulating to deal with existing effects of existing commerce.


Good work, Clarice.

Frau Kapuze

That's how I've seen Kagan, and I worried about her being put on the court more than about the Wise Latina. We now have the ACLU, La Raza and CRT represented.



except for the commerce they are forcing people into participating in.


If Rivkin is right on Kennedy being a rock on limitations on Federal powers, Matt, I dont see how you read that exchange as being anything other than " Mr Solicitor, you are so full of spit its dribbling out your ears."

Danube of Thought

"Over at Ann Althouse's house, she was suggesting that the SG was deliberately throwing the game for some undisclosed secret plan."

Cuckoo. His inability to respond well in oral argument will have zero effect on the outcome. If he wanted to throw it, the time to do so was in the briefing.

I applaud TC's comprehensive prediction. Wouldn't all of that be grand?

Frau Kapuze

boatbuilder, remember the howls about the unitary executive when GWB was in office? IIRC Dubya' "excesses" were in the area of national security.

Whose photograph should be by the definition of the Imperial President?


DoT -- IF IF Althouse said that she is cuckoo and should keep her day job. wait a tick-- Conlaw is her day job. Ugh.


I really think the SG had a hard case to make and I hope he didn't make it.


I don't remember what the penalties for failing to obtain govt approved insurance are projected to be. And how much for a lawyer to represent someone so charged who contests the penalty? Anyone know that off the top of your heads?

Just wondering what the costs of a Bartleby defense might entail. Because honestly, when it comes to quietly acquiescing to a coerced contract, I would prefer not to.


Prof Ilya Somin at Volokh doesn't think the SG made the case either:
{[quote]Today’s oral argument was a good day for the anti-mandate plaintiffs and a troubling one for the law’s defenders. I have long argued that the weakest point in the federal government’s case is the failure to provide a coherent explanation of why the rationale for the health insurance mandate doesn’t also justify virtually any other mandate Congress might impose (e.g. here and here). All five of the conservative justice raised this exact issue during the course of today’s oral argument, and none of them seemed satisfied with Solicitor General Donald Verrilli’s answers. This does not bode well for the mandate.

I was also very happy to see this exchange between Verrilli and Justice Scalia regarding the Necessary and Proper Clause:

JUSTICE SCALIA: Wait. That’s — it’s both “Necessary and Proper.” What you just said addresses what’s necessary. Yes, has to be reasonably adapted. Necessary does not mean essential, just reasonably adapted. But in addition to being necessary, it has to be proper. And we’ve held in two cases that something that was reasonably adapted was not proper, because it violated the sovereignty of the States, which was implicit in the constitutional structure.

The argument here is that this also is — may be necessary, but it’s not proper, because it violates an
equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a a
government that has all powers; that it’s supposed to be a government of limited powers. And that’s what all
this questioning has been about. What — what is left? If the government can do this, what — what else can it
not do?

GENERAL VERRILLI: This does not violate the norm of proper as this Court articulated it in Printz or
in New York because it does not interfere with the States as sovereigns. This is a regulation that — this
is a regulation -­

JUSTICE SCALIA: No, that wasn’t my point. That is not the only constitutional principle that


JUSTICE SCALIA: An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the
States and do not belong to the Federal Government.

Scalia makes the key points that 1) a state must be both “necessary” and “proper” to be authorized by the Necessary and Proper Clause, and (2) a statute cannot be proper if the legal rationale for it would justify nearly unlimited federal power. These are exactly the arguments that we advanced in the amicus brief on this very issue that I wrote on behalf of the Washington Legal Foundation and a group of constitutional law scholars.[/quote]


Dont worry Alice they will fix that problem for you in the reeducation camps.


An off-topic kinda cool thing -
My friend is in Afghanistan & he posted this on his FB -

"The Chapel here has a program where you can read a book on a DVD and they will send the DVD and the book to your kids! Here is XXXXX watching me read his new edition of Green Eggs and Ham!! "Sam I am, Sam I am, I DO NOT like Green Eggs and Ham!!!"

I'll try to find out the name of the organization that sponsors this...but what a great idea to keep military families strong while separated!


I did hear a snippet on the way of the bit with Scalia on the necessary and proper clause. It was a lecture to a petulant school boy about the fact that the there are rules that must be followed at boarding school and you best be memorizing them forthwith. Dont let me have to tell you this again.


I do not like them in a box. I do not like them with a fox. Not in a house not with a mouse. I do not like green eggs and ham. I do not like them Sam I Am.

I am remembering from @ 20 years ago.....it's sort of like "It's a Small World After All". If I hear that song again I may be inclined to violent behavior. They get stuck in your head and never leave.


Rick agreed with me earlier about Kennedy not wanting his vote with the govt on this to be his legacy noting that Kelo was bad enough. But it's worse than Kelo which I have said was the worst SCOTUS case of my lifetime--because to be frank, the justices there, including Kennedy,just made tacit what the Ct had been doing with the concept of imminent domain sub rosa in the years leading up to Kelo.


The Fifth Circuit Court, just checkmated the EPA


Janet, that's a wonderful program. I always feel so badly about the children of service men and women stationed far from home.


March 27, 2012 the day Obama and Pelosi and Reid were prevented from running roughshod over the Constitution. Not sure if the oceans stopped rising too, but even if not, its a wonderful day to witness.

Jim Rhoads a/k/a vnjagvet

I just listened to the rest of the argument. The NFIB lawyer wasn't as smooth or glib as Clement, but did a good job of handling the questions of Breyer, Ginsberg, Kagan and Sotomayor.

Here's the key question/statement Kennedy made in response to Carvin's answer to a Breyer question:

MR. CARVIN: It is clear that the failure to buy health insurance doesn't affect anyone. Defaulting on your payments to your health care provider does. Congress chose for whatever reason not to regulate the harmful activity of defaulting on your health care provider. They used the 20 percent or whoever among the uninsured as a leverage to regulate the 100 percent of the uninsured.

JUSTICE KENNEDY: I agree -- I agree that that's what's happening here.


JUSTICE KENNEDY: And the government tells us that's because the insurance market is unique. And in the next case, it'll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets -- stipulate two markets -- the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That's my concern in the case.

I hope Scalia, Alito, Roberts or Thomas can persuade him that being "uniquely proximately very close" ain't close enough to limit Congress's power to regulate commerce.


Slapping them with the law like that;

Despite an eighteen month statutory deadline, the EPA did not take action on any of these submissions until September 15, 2010. At that late date, the EPA disapproved the PCP Standard Permit—submitted four and a half years earlier—based on its purported nonconformity with three extra-statutory standards that the EPA created out of whole cloth.

Moreover, the EPA did this in the context of a cooperative federalism regime that affords sweeping discretion to the states to develop implementation plans and assigns to the EPA the narrow task of ensuring that a state plan meets the minimum requirements of the Act. The EPA applied these unauthorized standards to disapprove of a state program for projects that reduce air pollution and that, under the Act’s plain terms, is subject to only the most minimal regulation.

Because the EPA waited until more than three years after the statutory deadline to act on Texas’s submission, we order the EPA to reconsider it expeditiously. On remand, the EPA must limit its review of Texas’s regulations to ensuring that they meet the minimal CAA requirements that govern SIP revisions to minor NSR, as set forth in 42 U.S.C. § 7410(a)(2)(C) and § 7410(l).

If Texas’s regulations satisfy those basic requirements, the EPA must approve
them, as § 7410(k)(3) requires. That is the full extent of the EPA’s authority in the SIP-approval process because that is all the authority that the CAA confers. See La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986) (“[A]n agency literally has no power to act . . . unless and until Congress confers power upon it.”).


getting to Ginsburg's statist, leftist question. From the WSJ:

Justice Ginsburg cited a brief filed to the court suggesting that those who go without health insurance raise costs for other consumers. Health care is different from other products, she suggested, because uninsured people are passing their costs to others.

"When disaster strikes, you may not have the money," Justice Ginsburg said.


It looks like the 5th circuit bitch slapped the EPA. The opinion is searing for the EPA waiting too long and then making up objections out of whole cloth.

Hell if I drank martinis I would be having one after a day like today.


House Chamber, Washington, D.C.

March 27, 2012

M. Speaker:

The House is about to consider a budget in a dangerous hour in the life of our country. Last year, we barreled past several urgent warning signals: the loss of our nation’s triple-A credit rating; the size of the national debt surpassing our entire economy; a record third year of trillion dollar-plus annual deficits.

I believe this to be one of our last opportunities to avert a financial crisis unprecedented in our nation’s experience and on a magnitude far greater than that now destroying Greece.

The blueprint passed by the House Budget Committee last week is a disappointment to those who believe the budget can and should be balanced much sooner, and I do not entirely disassociate myself from those sentiments.

But the immediate issue before us, as Lincoln put it, “is not ‘can any of us imagine better?’ but, ‘can we all do better?’” The approaching financial crisis demands first and foremost that we turn this country away from the fiscal precipice and place it back on a course to solvency.

This budget does so. Indeed, it improves on the House budget last year that was killed in the Senate, but which according to Standard and Poors, would have preserved the triple-A credit rating of the United States Government. This budget, I believe, will restore it.

It is a long road back, balancing by the late 2030’s and ultimately paying off the entire debt by the mid-2050’s. But even relying on the static scoring of the CBO which presents a worst-case scenario – it still means that my children – who are now in college – will be able to retire into a prosperous and debt-free America.

There is a great deal in it for Conservatives not to like. That is not the issue. The issue is, will this Congress and ultimately this government change its fiscal trajectory enough to avert the sovereign debt crisis that fiscal experts across the spectrum warn us is just a few years dead ahead?

This is not some moonless night on the Atlantic. We can see this danger right ahead of us and we can see that it is big enough to sink this great ship of state. We have precious little time remaining to avert it. This budget will turn us just enough to avoid that calamity – and I fear we won’t have many more opportunities to do so.

The alternative is unthinkable. The President’s budget would subject our nation to one of the biggest tax increases in its history – striking especially hard at the small businesses that we are depending upon to create 2/3 of the new jobs that Americans desperately need. And even so, by its own numbers it NEVER balances, and thus courts the fiscal collapse of our nation.

Hemingway asked “How do you go bankrupt?” “Two ways,” he said. “Gradually, then suddenly.”

For the last decade, this nation has been going bankrupt gradually.

History warns us that if we do not change this course very soon, we will cease going bankrupt gradually and start going bankrupt quite suddenly. It may happen through a chain reaction set off by a seemingly minor international event. It may happen one day when a routine bond auction sours.

Interest rates will start rising rapidly. Financial panics will begin. The government will have to respond by increasingly frantic efforts to maintain a stream of capital, either through massive policy dislocations or catastrophic inflation.

The approach of great cataclysms that are so obvious to historians in retrospect, are often unheeded by contemporaries at the time. Just thirty days before the outbreak of World War II, Neville Chamberlain recessed Parliament to go on extended holiday.

Let that not be how history remembers this Congress. This budget is not perfect –but it is adequate to spare our country from the convulsions of Greece.

I wholeheartedly support this budget for that reason – and I expect it will have the overwhelming support of this House. I can only hope that the Senate this time will put aside its own differences and heed Lincoln’s plea that “the dogmas of the quiet past are inadequate to the stormy present. The occasion is piled high with difficulty, and we must rise – with the occasion…We must disenthrall ourselves, and then we shall save our Country.”



Tell me again why the R's are not openly working to clip the EPA's regulatory wings and waiting for the Courts to do what they should be doing?


Lets see you mandate Hospitals must serve everyone and then based on that mandate, you conclude hey some folks are going to be irresponsible and not do the right thing, so we have to mandate health insurance even if you wish to self insure the risk? Go back to the ACLU Ginsberg.

Sara (Pal2Pal)

After listening to Kennedy today and the legal beagles afterward, the consensus is that Kennedy is not very gung ho for the mandate and has framed it as a liberty issue at the core. This is positive. The comment that threw me was one in which they said that it was the Scalia vote that was in doubt as to whether to overturn, otherwise, based on the arguments and the out-lawyering on the side of those wanting the whole thing done away with, the government's position was weak at best and more likely toast.

Breyer seemed annoyed over the tax vs penalty question yesterday, but I didn't hear him today.

If we are predicting: I say they overturn.


I don't remember what the penalties for failing to obtain govt approved insurance are projected to be. And how much for a lawyer to represent someone so charged who contests the penalty?


The penalty is a fine. However the law has no provision of what to do with you if you don't pay the fine.

The Fifth Circuit Court, just checkmated the EPA


Do you have a link for the story?


I frequently wonder what our majority in the House does. They seem incredibly weak, especially for a group elected to do something.


5-4 upholding the constitutionality.

The quisling Kennedy sticks the knife in again.

Does not really matter at all what the legal content is. You arm just kidding yourself. They might as well be talking about the price of tea in China. It is purely ideological and political. Kennedy and the liberal 4 care about their project and do not care about the law.

It will seriously damage this country, not the least of which will be the political institutions. Nothing matters now but power.

We are no longer a constitutional republic, we are no longer a nations of reasonable and moral laws.

We are in fact serfs. We are an nation occupied by its enemies. They just happen to be our neighbors; they are more vicious and destructive that any foreign enemy.

If the Democrats are not decidedly thrown out of office and this reversed then the one party communist state will become a reality in a matter of years.

And just look at the miserable people who have done this. Who would have thought that the USA and its centuries of noble struggle could be undone by such vile and mediocre people like this? What a tiny handful of them too.

Beyond belief! Who would have thought it?

And American for the most part barely register it.


There is a limit to the Commerce Clause. There must be. Otherwise, according to their own logic anything is allowable.

There is some limit--see US v. Lopez. Essentially when something is not remotely commerce (in this case regulations about guns in school zones), SCOTUS said the Commerce Clause doesn't apply. But, remarkably, that was only a 5-4 decision, meaning the liberals (Breyer and, I think, Ginsburg among them) felt that it applied even where the connection to interstate commerce was remote or non-existent.


JimRhoads/SquareDance-- Jim I think you pinpoint where kennedy was in argument. Square I think you pinpoint where he comes out in decision. Roberts joins the 5 assigns himself to write the opinion. Ugh.


--Justice Ginsburg cited a brief filed to the court suggesting that those who go without health insurance raise costs for other consumers.

---- the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries--

Since unit costs almost always decline as units increase please tell me how the health insurance market is different than any other market.
If we mandated the autoless buy cars the unit costs would decline for the entire market once supply and demand had equilibriated.
Firearms as well.
Timber and logs.
Those who go without pink flamingos in their front yard raise the costs to their flamingoed neighbors.

What doesn't Kennedy's "uniquely proximate" argument apply to?


It's a pdf on this thread


Sara (Pal2Pal)

Could one of the attorneys answer: Why, the minute the first waiver was given, did the government not lose? What legal reasoning allows some to be given waivers, while the rest of us have to submit?

Captain Hate

I frequently wonder what our majority in the House does. They seem incredibly weak, especially for a group elected to do something.

They seem to be doing be operating under the minimum expectations and still get blasted by the MFM for being "obstructionists". When you're getting all the blame you may as well do something to deserve it.

Captain Hate

I want the answer to that too, Sara.


I think I'd be ok with a flamingo mandate.


They aren't even talking about doing something about the excessive control given to regulatory agencies and the need to take it back and make the legislature the legislature.

Sara, I don't believe any of these cases challenged the waivers in the lower courts and therefore they cannot raise that issue in the SCOTUS. I believe these cases were filed BEFORE the waivers and I do not know that anyone denied a waiver has brought suit.


What legal reasoning allows some to be given waivers, while the rest of us have to submit?

Amen, Sara!....and the inscription above the doors to the Supreme Court - "Equal Justice Under Law" - seems like a joke these days.


Lets be honest. Did ANYONE doubt for one moment what Squaredance would say?

Captain Hate

C, a lot of the non TP ones benefited from the Contract with America but didn't want anything to do with the term limits, and then proceeded to spend money like their counterparts across the aisle. Then they were coddled by Rove as part of his "permanent majority" and now are secretly happy to see the MFM demonize the tea party while hoping to avoid a primary challenge.

Pretty much a bunch of neutered placeholders.

Captain Hate

Gmax, you're assuming I read it.

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