The Other McCain

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ObamaCare Granted Certiorari

Posted on | November 14, 2011 | 26 Comments

by Smitty

SCOTUSblog reports:

Setting the stage for a historic constitutional confrontation over federal power, the Supreme Court on Monday granted three separate cases on the constitutionality of the new federal health care law, and set aside 5 1/2 hours for oral argument, to be held in March. The Court, however, did not grant all of the issues raised and it chose issues to review only from three of the five separate appeals before it. It is unclear, at this point, whether all of the cases will be heard on a single day.

My man Cuccinelli has sounded quite firm and confident about the arguments in Virginia’s case, which is being pulled into the multi-state fracas. 27 states, in fact, desire to tell #OccupyResoluteDesk where to go with his legislative brainchild and what to do with it upon arrival.

Jimmie Bise on Twitter seems to think that a majority of the states could get crushed in a case where constitutionally, economically, financially, historically (to look at Europe) the states totally have the right of it*. Coming as it does during an election year, the SCOTUS will be under extreme pressure not to make the president look worse than usual. A follow-up post at SCOTUSblog summarizes the issues. The intense scrutiny on this issue is going to hurt the Left significantly. So much of ObamaCare in particular and Progressivism in general is predicated upon you shutting up and grazing quietly in your pasture, you ungrateful little sheep.

Yet Progressivism is the dead parrot of our day. I cannot fathom the Roberts court failing to scuttle ObamaCare, at least in a de facto way. There may be enough desire to offer a fig leaf that an attempt is made to leave BHO’s centerpiece ‘achievement’ intact. Certainly, the wording will try to minimize collateral damage to the Progressive project, lest the Roberts court be charged with Judicial Activism, which is only acceptable to Progressives in the service of tearing down what is good about the country.

In a way, it does not matter. Irrespective of the ObamaCare decision, conservatives must double down on efforts to emancipate future generations from the failed promise of the New Deal. Extremism in the defense of liberty is no vice.

via Ace of Spades

Update: Linked at The Lonely Conservative

Update II: More at Hot Air, and now a Memorandum thread. Legal Insurrection notes:

And, it does not look like Elena Kagan recused herself from consideration of the cert petitions, so expect her to be part of the decision, notwithstanding very strong evidence that she had some level of prior involvement when Solicitor General.

I, for one, can assert with total confidence that Kagan was not selected specifically to tilt the discussion in favor of ObamaCare. No, wait: it’s blatantly obvious that she was.

Update III: At Power Line, a note on the fact that the SCOTUS will hear 5.5 hours of testimony across four questions:

It is impossible to overstate how remarkable this is. Usually the Supreme Court allows only an hour for a whole case to be argued. They didn’t even extend the time limit for the two Bush v. Gore cases in 2000. Prediction: If the Court strikes down Obamacare, and especially if its opinion goes beyond just the individual mandate, as these issues suggest is possible, look for the Left to start calling it “the Extreme Court.”

Since we’re in an all politics, all the time era, we see how Obama tries to leverage the abject failure of his policies into a “blame conservatives” game. ObamaCare was sabotaged by the GOP and Buuuuush appointees. In order to usher in the Progressive Human Unicorn Cornucopia (PHUC), we must re-elect #OccupyResoluteDesk, so he can appoint more drool bucketwise softball player Justices, and break through this conservative roadblock.

Update IV: The Federalist Society Blog:

the Fourth Annual Rosenkranz Debate and Luncheon at The Federalist Society’s National Lawyers Convention, former solicitor general Paul Clement and Professor Laurence Tribe debated the very question. It was truly a preview of coming attractions since Clement will be arguing the case before the Supreme Court.

A very interesting post, showing just how far off a straightforward interpretation of our Constitution, and into the realms of sophistry we have journeyed.
Video here.

*That tweet is so Eeyore-ish as to invite the question: Is Jimmie Bise actually the international man of mystery known as Allahpundit?


26 Responses to “ObamaCare Granted Certiorari”

  1. Adjoran
    November 14th, 2011 @ 3:30 pm

    “… SCOTUS will be under extreme pressure not to make the president look worse than usual.”

    How do you pressure people with lifetime appointments?  Especially those who bask in their independence from political winds? 

    That’s why I come down so hard on those threatening not to support the GOP nominee:  there will be literally hundreds of life appointments to the federal bench in the next Presidential term.  Only a blithering idiot would claim there “is no difference” between the parties – no matter who we nominate.

    Either way the decision goes could help Republicans in the fall (decision expected in June).  Upholding ObamaCare will help reignite the passion of the public to oppose it and demand repeal.  Overturning it gives us the issue of the Democrats’ outrageous unconstitutional power grab as they spend us into bankruptcy.

    It is known the only way to accurately predict a SCOTUS decision is to find a goat with the visage of Allahpundit on its side, gut it, and read the entrails.  Lacking a proper goat, I can only surmise that perhaps Obama will come to regret insulting the Justices as they sat politely for his SOTU harangue.  Kennedy, the perennial swing vote, was supposedly very offended.

    If he rubs his eye with his middle finger as he reads the decision, maybe Barry will decode the secret message.

  2. Supreme Court Sets Obamacare Oral Arguments | The Lonely Conservative
    November 14th, 2011 @ 3:43 pm

    […] involved with planning the defense of this legislation and was pretty excited when it passed.H/T The Other McCaingoogle_ad_client = "ca-pub-1395656889568144"; /* 300×250, created 8/11/08 */ google_ad_slot = […]

  3. smitty
    November 14th, 2011 @ 4:13 pm

    Oh, I’m sure there are some associations for Kagan and Sotomayor, and indirect means on the other Lefty appointments.

  4. Joe
    November 14th, 2011 @ 4:26 pm

    Kagan is almost certain to recuse (given her comments to Tribe and her working for the administration).  The left is trying to do the same for Thomas, but he will refuse and stay in place.   There is a chance this law gets struck down.  That assumes Tony Kennedy can find his balls (which is hardly guaranteed).

  5. Joe
    November 14th, 2011 @ 4:27 pm

    A tie does not work.  There has to be a majority to strike the law down. 

  6. Anonymous
    November 14th, 2011 @ 4:31 pm

    Either way they decide throw’s a spark at some one’s keg.

  7. smitty
    November 14th, 2011 @ 4:31 pm

    What is stunning is the way the 10th Amendment is completely ignored in all of this ObamaCare discussion.

  8. Joe
    November 14th, 2011 @ 4:36 pm
  9. Joe
    November 14th, 2011 @ 4:38 pm

    10th Amendment?  Lefties laugh at your 10th Amendment arguments. 

    I only wish this could be an opportunity for the Supreme Court to do some restoration work to the Constitution.  Revitalizing the 10th and devitalizing the commerce and general welfare clauses would be very very welcomed. 

  10. Kattenburg Kathy
    November 14th, 2011 @ 4:45 pm

    “Certainly, the wording will try to minimize collateral damage to the
    Progressive project, lest the Roberts court be charged with Judicial
    Activism, which is only acceptable to Progressives in the service of
    tearing down what is good about the country.”

    And 45 million insured Americans is what is good about this country?

  11. Kattenburg Kathy
    November 14th, 2011 @ 4:47 pm

    That should have been UNinsured Americans, of course.

  12. Joe
    November 14th, 2011 @ 4:54 pm

    While Obama might benefit from ObamaCare being struck down, I still want ObamaCare struck down. 

  13. smitty
    November 14th, 2011 @ 5:02 pm

    (a) Individual uninsured Americans is a federal task only if you smoke a lot of Progressive crack.
    (b) There is an Edit choice instead of Like for your own comments, should you need to tidy them.

  14. Charles
    November 14th, 2011 @ 5:25 pm

    If the individual mandate is declared unconstitutional but medicare remains constitutional, you can expect Nancy Pelosi to be back cackling for the public option of medicare for all.

  15. Kattenburg Kathy
    November 14th, 2011 @ 5:36 pm

    I looked for an Edit button before using Reply, Smitty — I didn’t see one. I’ll look more closely next time.

  16. Joe
    November 14th, 2011 @ 6:15 pm

     “Is Jimmie Bise actually the international man of mystery known as Allahpundit?”

    Does Jimmie have a dog and absolutely no success with women? 

  17. Anonymous
    November 14th, 2011 @ 6:35 pm

    There is actually a very simple solution for many of the uninsured, I’m amazed that no one has implemented it before. All Congress need do is immediately pass legislation making it possible for immigrant’s, whether illegal or not, to transfer their health coverage from their last employer in their country of origin.

  18. ThePaganTemple
    November 14th, 2011 @ 7:05 pm

    It doesn’t matter, she’ll never get it with this Congress, and I have some doubts it would even pass in the Senate.

  19. BruceC
    November 14th, 2011 @ 8:55 pm

    The problem has been that if the mandate is struck down but the rest of the legal monstrosity is allowed to remain, then all of its other provisions (like the one that prevents an insurance company from refusing to cover someone) will probably cause the private insurance industry to collapse.  People will just wait until they become sick and then get a policy. 

    The entire law has to go.

  20. BruceC
    November 14th, 2011 @ 8:59 pm

    I’m not a lawyer, or even the president of the Harvard Law Review, but it’s my impression that what happens in the event of the tie is that the decision that was appealed to the US Supreme Court is upheld.  So doesn’t it depend on which appeal is preeminent?

  21. smitty
    November 14th, 2011 @ 9:48 pm

    After you Reply, the Like button changes to Edit. 🙂

  22. Anonymous
    November 14th, 2011 @ 10:16 pm

    Clearly you have forgotten the wisdom of Mr. Dooley regarding the Supremes: “No matter whether the country follows the flag or not, the Supreme Court follows the election returns.”

  23. Anonymous
    November 14th, 2011 @ 10:17 pm

    Delenda Obamacare est!

  24. Anonymous
    November 14th, 2011 @ 11:03 pm
  25. The Spot-On Quote Of The Day… « The Camp Of The Saints
    November 15th, 2011 @ 10:14 am

    […] Over at The Other McCain, Smitty laments ‘how far off a straightforward interpretation of our Constitution, and into the realms of […]

  26. Dave
    November 15th, 2011 @ 8:49 pm

    45 million uninsured Americans is a liberal fantasy. If you would just bother to read the census report that that figure is based upon, you’d see how wildly out of line with reality that figure is. Amongst other things;
    1/3 of those “uninsured” are eligible for  existing programs (Medicare and Medicade) and haven’t bothered to sign up.
    10-12 million are illegal aliens. They aren’t “Americans” by any stretch of the definition.
    20% make more that $50K/year and are uninsured by choice-they don’t want to or won’t prioritize their budget to pay for insurance.

    Repeating talking points that have been debunked frequently, including by the very document you’re purportedly citing, makes you look uninformed.