Supreme Court

The Shifting Legal Arguments for ObamaCare

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Writing in today's Wall Street Journal, Georgetown law professor Randy Barnett takes aim at the shifting rationales made by supporters of the individual health insurance mandate:

A "tell" in poker is a subtle but detectable change in a player's behavior or demeanor that reveals clues about the player's assessment of his hand. Something similar has happened with regard to the insurance mandate at the core of last month's health reform legislation. Congress justified its authority to enact the mandate on the grounds that it is a regulation of commerce. But as this justification came under heavy constitutional fire, the mandate's defenders changed the argument—now claiming constitutional authority under Congress's power to tax.

This switch in constitutional theories is a tell: Defenders of the bill lack confidence in their commerce power theory. The switch also comes too late. When the mandate's constitutionality comes up for review as part of the state attorneys general lawsuit, the Supreme Court will not consider the penalty enforcing the mandate to be a tax because, in the provision that actually defines and imposes the mandate and penalty, Congress did not call it a tax and did not treat it as a tax.

Read the whole thing here.

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  1. So, no morning links today?

    1. Why bother? The troll army will just shit all over them anyway.

      1. It’s a Seven Nation Army of trolls, sockpuppets, GOP apologists, crypto-Republicans, liberal shit-stirrers, contrarians, and Warty. Yup, Warty’s an entire nation. Of douche!

        1. Warty’s an entire nation. Of douche!

          Ride the wave!

        2. I don’t deserve this all slanderous fuckgarble.

      2. We need a Keanu Reeves.

        1. Yes, it is a shit Matrix. Fecal trolls and anal probes notwithstanding.

        2. Or some kind of daily troll bait thread. When they all get on there, we can take turns arguing with them, while the rest of the threads go unpolluted by troll smegma.

          1. Maybe an online anonymity thread to corral our spammer.

        3. Hey, g-love, where’s Special Sauce?

      3. Why dees people always banging on trolls?

    2. If there are no morning links, then I will just shit some metal out right here. Assholes.

  2. Congress is the only American entity that thinks it can win with a busted flush.

    Unfortunately, they can change the rules to make that possible.

  3. We had to pass it to tell what’s in it!

  4. Who is surprised that a legislature full of legal practitioners would throw defenses against the wall and go with whatever sticks?

  5. Who is surprised that a legislature full of legal practitioners would throw defenses against the wall and go with whatever sticks?

    I’m surprised they still bother throwing them. It’s unnecessary.

    When’s the last time the 10th Amendment was on? 1790?

  6. It all hinges on whatever bullshit SCOTUS pulls out their ass to justify it. Striking it down is easy. But if they decide to keep it, they need an argument that most likely won’t be one the Congress is throwing around right now. Whichever sucker at DOJ gets tasked with defending this is going to have to com up with a theory the court can buy off on.

    Of course, SCOTUS could always strike it down.

    BWAHAHAHAHAHAHAHAHAHA. Yeah, right.

    1. My bet is that it will be the “Right to Privacy.”

      Or maybe the “Kelo” one – ‘The Right of the State to Mo Money”

  7. Who cares? The important thing is that now everybody will have free health care.

    1. YES!

    2. If by “free” you mean “paid for by someone else”.

  8. Whats funyn is “Obamacare” has passed, yet everything remains the same!

    Lou
    http://www.post-anonymously.us.tc

    1. Lou, this site is full of people who love the heck out of you. We don’t want to see you go down this destructive path. LOL. You really need to stop posting around here while you’re high. I mean really. FTW.

      Jess
      http://www.post-anonymously.us.tc

  9. In their hearts liberals want the Court to strike down the mandate. Obamacare is a complete disaster and they know it. But if the Court strikes down the mandate, they can claim it would have worked if the evil Supreme Court hadn’t struck down the mandate.

    1. In their hearts liberals want the Court to strike down the mandate. Obamacare is a complete disaster and they know it. But if the Court strikes down /imandate, they can claim it would have worked if the evil Supreme Coryurt hadn’t struck down the mandate.

      If the court strikes down the mandate and leaves everything else in tact, liberals would be happy. Because it will hasten the move to a Single Payer system.

      The mandate is there because the insurance companies demanded it. That’s the only way to keep healthy (low-cost) customers in the pool and prevent people from waiting til they get sick to buy insurance.

      Without a mandate, insurance companies run the risk of having their pools be dominated by sick people who can’t get rescinded or denied for pre-existing conditions.

      Be careful what you wish for.
      If one adamantly against Single Payer /Socialized medicine you should probably be hoping the mandate survives.

  10. Go ahead and keep on talking about your “law” and your “constitution”; we won, we do what we want.

  11. Did Obama say something precisely about this not being a tax??? Hm someone is lying or confused.

  12. …in the provision that actually defines and imposes the mandate and penalty, Congress did not call it a tax and did not treat it as a tax.

    Plus, the President Himself told us that if we make less than $250,000 per year, our taxes will not increase one dime. Therefore, this cannot be a tax because otherwise the President Himself lied to us.

    I’m ready for my seat on the appeals court now. I’d like the one with the extra cushioning, please.

    1. It’s enough to make you nostalgic for Clinton. He was a pathological liar, too, but at least he was good at it.

      1. That depends on what your definition of the word “good” is…

        1. And that, of course, depends upon what your definition of “is” is.

        2. Well, it was entertaining.

      2. Yeah, when Clinton lied we all knew it, but he kinda did it with a wink and a smile. Obama makes you wonder if he has actually convinced himself that what he says is true.

        1. It’s scary, ’cause it’s true…

  13. While the insurance mandate is probably unconstitutional even by the expansive view of the ICC these days, having it struck down is actually going to make matters worse. The requirement to cover people with preexisting conditions would remain in place, and without the mandate, that’s going to drive every private insurer out of business in a very short time.

    And then we enter the brave new world of socialized medicine since “the market has failed.”

    1. And what part of this was not in the plan?

      1. I’d classify this one more as serendipity. I don’t think they are that good at planning, honestly.

        1. Don’t underestimate this. The desire for a public option was very strong for these guys. I’m sure this bill was sold as the path to get there.

    2. But the “requirement” to cover pre-existing conditions is so poorly and vaguely drafted that it doesn’t really mean that.

    3. But the “requirement” to cover pre-existing conditions is so poorly and vaguely drafted that it doesn’t really mean that.

      1. But the “requirement” to cover pre-existing conditions is so poorly and vaguely drafted that it doesn’t really mean that

        hahahah

        It will mean whatever the head of HHS says it means.

  14. The Congress shall have power To lay and collect Taxes, Duties, Imposts and Excises,

    It doesn’t have to be a tax to fall under this provision. They may be able to sneak an insurance penalty in as an excise, for instance.

    1. My last understanding is that it is a tax in that your taxes do increase and you are qualified for a tax credit if you have insurance. No?

    2. Also, excises are excise taxes – taxes on the production of a specific product.

    1. I was saving that for the Morning Links that hasn’t materialized… SF haz a sad.

      1. I hate when there are no morning links. It means we have to spread our stupid bantering out and ruin a bunch of other threads.

        1. So many of them come pre-ruined at this point…

    2. “Flood said the missing piece of the man’s ear was not found, and he would likely require plastic surgery.”

      Look at her! You can tell she swallows…

      1. I think her waistline already told us that. Unless the new fat excuse is that standing next to food makes you fat. Second-hand fat. Waitresses everywhere start class action.

        IT’S MY GLANDS!

        1. I thought that science had settled the debate: viruses cause obesity.

    3. So, what, is she some kind of fugly Wendigo now?

  15. Don’t tax bills have to originate in the House?

    Didn’t this bill originate in the Senate?

    I think someone asked and/or answered this once before, but me no so bright and can’t keep track of how my superiors in government constantly justify the things they do.

    1. That would be funny if that’s the angle that brings it down.

    2. didn’t the senate pass it again after the house did? But since it was a “reconcilliation” it was fillibuster proof and only needed 51 votes?

      1. Isaac’s point, if he’s correct, is that the bill origninated in the Senate not the house, and that might be against the rules.

    3. That’s a perfectly valid question. It was tied up with that Senate Parliamentarian “pass it here, pass it there, pass it here again” folderol. It was all explained to me a few weeks ago. For a brief, shining moment, I understood it, like how Bertrand Russell once understood the Ontological Proof of the Existence of God for an hour or so. But it’s all vanished in a puff of incense and the fading sound of tinkling bells.

      Anyway, you have better things to do.

  16. If Mitt Romney was elected, we could be arguing the legalities of national Romneycare.

    1. MORMON HATER!

      1. Who could hate the Mormons? They are some of the nicest people I’ve known. Nice to the point of creepiness.

  17. So the power to tax is the the same thing as the power to compel you do anything they damn well please.

    1. If I didn’t laught at guys with tin foil hats, I’d put mine on.

  18. If they pass it as a tax increase that’s may cause enforcement problems down the line.

    No so much making sure people pay their taxes, but a “tax” that gets progressively larger the longer you refrain from doing some specific thing is of dubious legality itself.

    So if the penalties aren’t high enough (and they aren’t), congress is going to have a tough time convincing the ccourt that they can keep increasing the tax until people buy health insurance, and still argue that it’s just a tax, and not a mandate.

  19. What USA needs is some vision.
    Or your probably heading for a bloody revolution.

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