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The Right Prescription

Desperately Seeking Solace

By on 2.8.11 @ 6:09AM

Obamacare’s supporters seek balm in balmy theories about the Vinson decision.

Discussing the utterly implausible main character of Charles Dickens’ The Old Curiosity Shop, Oscar Wilde famously quipped, “One would have to have a heart of stone to read the death of little Nell without dissolving into tears… of laughter.” It is similarly difficult to choke back the chuckles while reading ostensibly serious attempts by progressive pundits and bloggers to portray ObamaCare as alive and well despite being ruled unconstitutional by U.S. District Judge Roger Vinson. For nearly a year these people have been writing smug opinion pieces and snide blog posts about Florida’s “frivolous” lawsuit, assuring their readers that such a ruling was a virtual impossibility. Now, their attempts to explain away the obvious implications of Judge Vinson’s decision manifestly fail to pass the laugh test.

The most hilarious of these involves the “musket mandate.” In their frantic search for some legal precedent that would contradict Vinson’s assertion that Congress can’t “compel an otherwise passive individual into a commercial transaction,” the imminent scholars at the Daily Kos, Salon, the Huffington Post, and more than a few mainstream “news” outlets have exhumed the Militia Act of 1792. This was a law passed by the 2nd Congress enabling the President to call up militias if the country “shall be invaded, or be in imminent danger of invasion from any foreign nation.” Because the act also required each militia member to “provide himself with a good musket or firelock,” these brilliant legal minds have pronounced it the perfect precedent for the ObamaCare’s requirement that every American buy health insurance.

Because that requirement was the primary target of Vinson’s ruling, the mandate’s advocates have peddled the 1792 law as proof that the government can indeed order citizens to buy things. Unfortunately for ObamaCare apologists, this same argument was raised shortly after Judge Henry Hudson struck down the mandate in a separate lawsuit filed in Virginia. And it failed to pass muster. Jeremy Singer-Vine at Slate, hardly a hive of Tea Party types, disposed of it thus: “How good of a defense, really, is the Militia Act for the insurance mandate? It’s pretty flimsy.” Why? Because the ObamaCare mandate is based on the Constitution’s commerce clause, while the Militia Act is grounded (oddly enough) in its militia clauses. Any attorney dumb enough to raise this argument before an actual judge would be laughed out of court

Only slightly less entertaining than the “musket mandate” is the claim that Vinson’s decision was a judicial anomaly that won’t be taken seriously by the higher courts. The Washington Post’s Ezra Klein provides an amusing twist on that widely disseminated fiction. Klein advises us that “a conservative legal scholar and friend” wrote him to say, “There remains a very good chance that this will not end up before the Supreme Court.… I’d wager just a little bit that these lower court decisions will be reversed and the matter will end there.” Setting aside curious similarities between Klein’s writing style and that of his friend, it is odd that a conservative would adhere so closely to the progressive party line. Klein’s nameless correspondent even uses the term “outlier,” which comes straight from the White House talking points on the ruling.

Not everyone has been able to appreciate the comedic value of Klein’s anonymous confidant. Jennifer Rubin, an attorney who spent many years practicing law and whose knowledge of the Supreme Court is considerable, was clearly not amused. In fact, she makes it pretty obvious that she doubts the authenticity of Klein’s conservative friend: “Ezra Klein finds a ‘conservative legal scholar’ to opine on whether the Supreme Court will take the ObamaCare case. Unlike every law professor and advocate whom I have talked to in the last two years on this case, Ezra’s gal or guy says the court won’t bite.” Rubin doesn’t actually call Klein a liar, but she does go on to point out that “unlike politicians, virtually every ‘conservative legal scholar’ is more than happy to go on the record, so I find it especially odd that this one does not.”

The vain hope that the high court will refuse to hear the Florida case has caused many of ObamaCare’s media apologists to grasp at another judicial straw as well. This one involves an obscure case, Alderman v. United States, which the Supreme Court recently declined to hear. The case involves whether a convicted felon can own body armor. What has this got to do with ObamaCare? Well, the lower court held that the government could legitimately forbid the crook from owning the body armor because it crossed over state lines and is therefore covered by the interstate commerce clause. Because the Court turned down the case, in effect refusing to overturn this broad interpretation of the commerce clause, ObamaCare’s media supporters hope that the Court might also refuse to hear the Florida case.

Although such an obscure decision wouldn’t normally attract the attention of the mainstream media, stories about this case have appeared in dozens of major outlets including Time, Salon, the Atlantic, the New York Times and who knows how many blogs. Ironically, the primary effect of this oddly pervasive coverage is to demonstrate that ObamaCare’s media advocates still don’t get what the Florida lawsuit is about. Alderman v. United States was about regulating an activity (i.e. the purchase of body armor by a violent criminal) while State of Florida v. U.S. Department Health and Human Services is about regulating inactivity (i.e. the failure to purchase insurance). As Judge Vinson put it, “It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause.”

It would also be a “radical departure” from current journalistic practice for ObamaCare’s media apologists to learn the basic facts concerning the court challenges about which they write opinion pieces. One such fact about the Florida lawsuit is that it’s headed for the Supreme Court. Facing such realities and reporting them honestly would certainly be easier and less risible than dredging up irrelevant 18th century laws, inventing imaginary conservatives, and parroting the latest listserv talking points about hopelessly obscure court decisions. But such is absurdity of advocacy journalism. Presumably, they believe it’s all for a good cause. To paraphrase Wilde, all bad journalism springs from genuine feeling.

 

About the Author

David Catron is a health care revenue cycle expert who has spent more than twenty years working for and consulting with hospitals and medical practices. He has an MBA from the University of Georgia and blogs at Health Care BS.

Letter to the Editor View all comments (35) |

Appleby| 2.8.11 @ 6:55AM

Back in my Ayn Rand days in California, I was having a similar argument with my roommate about Social Security and Welfare. My roommate asked me if I would support it if it were voluntary, and then said triumphantly, *You see -- THATS WHY YOU HAVE TO BE FORCED TO!*

That was 35 years ago. Some things never change.

Louis Jenkins| 2.8.11 @ 7:41AM

Give us a break! The Militia Act of 1792? I though the Constitution was passe', thoroughly too old for modern America. Besides, every man had a weapon back then. There are no limits to which these liberals will go.

davelnaf| 2.8.11 @ 7:44AM

Obamacare’s advocates aren’t grasping at (imaginary) straws for nothing. If the Supreme Court rules that this mandate is unconstitutional it will not only kill off Obamacare for good, but turn whatever is left of the Bamster’s reelection chances into the walking dead. With this much at stake the MSM and the Left can't just flail away at Obamacare’s detractors with their usual inane arguments. Have some pity for these poor souls.

Patrick| 2.8.11 @ 1:03PM

Pity? Ah, no.

Let Obamacare die horribly and thoroughly. Let the fallout be a political bloodbath. Let me hear the sweet melody of their wailing and gnashing teeth. Let every one of their absurd crusades be known to one and all as the product of Malabolge.

Pity is for the contrite of heart, and being liberal means never having to say you're sorry.

Ken (Old Texican)| 2.8.11 @ 8:53AM

Mr. Catron, I wrote this in the depths of the "valley of death" of our country (September 2009)
During those dark days I wrote about "the referees"

Last Things.....First!

We are T.E.A.M. AMERICA. Let's keep that analogy going for this article.

Today, we are going to talk about "last ditches". Some very bright guy in the mists of history stated "You must not be thinking about what your "opposition" might do, but what they can do"! Well, our opposing team is equal to the best Super-bowl football team ever. We on the other hand are a small town high-school team. (Gulp). Further, we are in "sudden death" overtime. The ball is on the fifty yard line.....and we are on defense.
What to do?

First of all, we take a quick glance at the bleachers. On the opposition side, 50,000 people are screaming to our opponents to finish us off. When we look to our side of the stadium, 50,000 people are pretty quiet and very still. Then a remarkable thing occurs. The Referee blows his whistle, and his helpers gather around for a conference.

None of us will ever know what was said in that referee conference, but we shall all remember that head official walk over to our high-school coach and whisper in his ear.
When the conversation was over, our coach called an immediate time-out, called the starters off the field, and the reserves, (second and third stringers), off the bench. After a short speech.......................................the entire team trotted onto the field and took positions. No positions any football fan ever saw before. Forty four committed teenagers, against eleven super-stars.

Ladies and gentlemen we are in that moment.

(The super stars of course are our current President and Congress and Senate. Right now though, we still have a Supreme Court that honors the rule of law and our Constitution. Should one more "Constitutionalist Supreme Judge" retire or die, we no longer have a "Referee".)

You know, I think I may have a sense of what that high-school coach would tell his kids...

"Young men, you know and I know that these guys we are facing have been goofing around with us the whole game. They have been loafing and laughing at us. Nevertheless, the game is tied, and you guys have played so far above your heads, (choked tears), I am so proud of you.....

"Well, I want the reserves to hit that line with all your strength...right at their feet! You are going to get a lot of cleat marks on your backs, but your buddies behind you will knock those guys' blocks off while they are stumbling around on you. You defensive backs.....I want five of you on every one of their receivers...You linebackers...pick a slot and go for their quarterback, and hit him with everything you've got."

The opposing bleachers of course are filled with the "News" networks, the smart-aleck ivy leaguers, and of course, the announcers in the broadcast booth.

In any event, the home high-school crowd begins to move around, then stand, then begin cheering their lungs out for their kids..............

The end

Okay, so what can our opposition do???

They can pass asinine laws. They can hire millions of "regulators". They can force us to do hugundous amounts to paper-work. They can steal our sweat to "spread the wealth around". They can cut off our fuel. They can force us to let grandma die. (They already own Medicare.) They can kick in our doors with a federal warrant any night they choose. They can silence dissent in the media. They think they can build an "internal security force" to force us to disarm......they are talking about silencing the internet as I write.

They can order the U.S. military to kill or imprison us, but I shall go to my own personal grave believing that our military will not kill or imprison fellow Americans standing on our constitutional guarantees decreed by our Constitution....under God!
So, last things first.

What do we do if the opposition turns off the internet? What do we do if they turn off our cell phones? What do we do if spokesmen among us are "disappeared"?
What do we do if they do create an "internal security force" out of inner city gangs and ACORN?

Well, there are lots of canaries in our coal mine aren't there? If Rush is taken off the air, (or changes his tune at the point of a gun), what do each of us do?

It truly is time to begin thinking about "last things" instead of the gossip of today.

Clint| 2.8.11 @ 1:48PM

Clint's Coach, " Clint, I want ya to take your helmet & put it right through that quarterback's belly button & out his asshole."
Clint to Coach, after he wrecks their quarterback," Hey coach I got his poop on my helmet."

donserge| 2.8.11 @ 9:01AM

Will the Obama administration use all the stall tactics it can until we get Supreme court retirements and Lindsay Graham can approve more of Obama's nominees?

Stan Redmond| 2.8.11 @ 2:24PM

AND Graham can rush to introduce another one of the most politically polarizing bills, AMNESTY to distract from the Obamacare fight...

Oh wait.

Dan Hirsch| 2.8.11 @ 9:22AM

I am greatly encouraged that they find themselves delving deeper and deeper into historical minutiae in an effort to find their salvation and keep coming up empty-handed.

Just pray for the health of five Supreme Court Justices - No, pray for all of them!

Anthony| 2.8.11 @ 9:35AM

What more proof do we need that the entire left suffers from mass psychosis?
We have witnessed their wild shifts in logic and facts to justify any position of Obozo's and the left's, the most recent manifestation of this insanity being the situation in Egypt, in order to attempt to rationalize their irrationality.
And don't forget AGW. ANY change in weather is now caused by AGW. I guess that covers everything eh? Except, are normal weather patterns and conditions also a product of AGW? Quick call Hansen at NASA.
They might just as well say that Judge Vinson's decision actually talks to them and tells them all will be well. This idiot Klein will soon be speaking in tongues, he's so off the charts.
I've really had it with these people, and I'm tired of catering to their loony thinking. It's time for one huge smackdown. That might shake them out of their stupor.

Dave | 2.8.11 @ 9:38AM

Coming to that big judicial building across the street from the Library of Congress in Washington, D.C., the nation's final court of appeals, the U.S. Supreme Court, will soon be hearing lawyer prepared pro and con arguments based on constitutional law versus activist-legal spin, regarding what was recently forced down America's collective throats. I refer to what the sound bite media has dubbed ... Obamacare. For those who've been following the latest rebellions, a federal judge in Florida declared the earlier mentioned Obamacare to be unconstitutional in a case brought by no less than 26 rebel states. In the meantime, a well placed fly in the White House washroom has reported hearing some grumbling: "Wait a minute. We won, they lost. Who do those guys think they are? Anyway??"

Well, call me naive but I believe they still think they're American states, and not yet part of The New Union of Obamastan Socialists. But don't be looking to the CBS Chipmunk and the other network nut gatherers for one of their in depth Special Reports. That hollow tree trunk has their own squirrel collection to deal with: Chris Matthews, "Crazy" Eddie Schultz and Rachel Madcow to name a few.

This long, arduous process is going to hit a few more federal fans before it lands on the Big Bench. And even then, there's no guarantee as to how the final vote will go. Remember, so far the judical rulings from other higher courts are now evenly split in four seperate hearings. Two activist judges have ruled that Obamacare is legal under the commerce clause -- while two others have found no commerce at all would be conducted under this economy crushing scheme. See, in order for it to fall definitively under the federal commerce clause - actual commerce among citizens or businesses must be conducted across state lines. That's where federal juristiction kicks in. Humm! Last time I checked, we weren't allowed to purchase our healthcare insurance across state lines as only designated companies are allowed to conduct the selling of insurance in individual state. So how again does that commerce clause work?

But further...

Here's the biggest fly in the Enforce Obamacare Ointment: The federal government (with help from thousands of soon-to-be-hired IRS agents) will begin collecting fines for failure to conduct that alleged commerce. Or as the pesky working class says - "Forced to purchase an insurance policy I don't freely choose to purchase." It's that last phrase the media libs like to leave on the cutting room floor, but we here, living in the back 40 know full well that the Obama Mandate means - "Buy a health care plan or we'll take your money anyway. Somebody's gotta pay for this." Actually, the official mandate statement doesn't include parts of those last few comments. I just like to toss in the obvious.

When this case finally settles on the Supreme's bench, it's probably going to come down to a single, swing vote justice: Sacramento's own Anthony Kennedy. I suspect the split count will probably go like this: Thomas, Roberts, Scalia and Alito voting with the constitutionalists while Bryer, Sotomyer, Kagen and Ginsberg will hand their dance cards to the pro-judical activists. Or as Al Gore once said: "The Constitution is a living, breathing document." What that means is, "the Constitution means whatever we want it to mean in order to promote a social agenda or political position. Even if those positions and agendas are at odds with that long document a bunch of old, dead white guys wrote 200 years ago."

And there's something else to think about when the Big Court finally gathers to rule on this one. Prior to being nominated to the Supreme Bench, Elena Kagen was President Obama's solicitor general who's job it was to defend the Obamacare plan during official hearings. Does the word recuse comes to mind? Well, maybe. But that's not going to happen. This is exactly why the president got her seated next to the other eight. And Justice Ginsburg? Last time I checked her resume, Judge Ruthie was once a board member of the ACLU and one of it's general council in the '70s. How's that for learning how to "game" the Constitution? Or as the bandito in the Bogy movie mumbled:

"Constitution? We don't got to show you no stinkin' Constitution."

These recent and soon to be Supreme Court rulings on Obamcare are littered with thousands and thousand of words, definitions and legal descriptions filled with too much minutia to be covered by one old white dude like me. But if you end up culling through a wide selection of sources, not just your morning fish wrap or a quick check of the Nightly Chipmunk Report, you're apt to arrive at a more informed conclusion than had you relied, primarily, on that thing that lands in your flower bed each morning. I've nothing against what your paperboy delivers, but when it comes to maintaining fully up to speed status on a wider range of fact, opinion and information, I think another ol', dead white guy had it about right:

"The man who reads nothing at all is better educated than the man who reads nothing but newspapers."
-Thomas Jefferson-

Fortunately, we still have the Internet and talk radio as a way of accessing the other side. But be aware, grasshoppers, the shifting hand of the socialist is always plotting ways to trim, control and/or eliminate your information intake. And while it's yet another thing to think about, I'd keep a close eye on the administration's pressing desire to push Net Neutrality by way of the Federal Communications Commission. It's not merely a simple solution for controling the cost of your access to the Net, but rather the first step toward controlling your access to the other side. Or as the progressives like to whisper: "Let's just take it ... one small drip at a time."

The End

Well, let's hope not.

Steve A| 2.8.11 @ 10:22AM

All you have to do is watch Obama's recent interview with Bill OReilly to understand that this man fully intends to continue to implement this legislation as long as he remains in office. He will blatantly disregard & defy any court ruling, including a Supreme Court decision, until his term has expired. This was painfully obvious if you paid attention to how he answered the question. The old media will praise his courage in standing up for justice & equality in spite of a biased court ruling.

Patrick| 2.8.11 @ 1:13PM

I suppose that would be true, provided someone doesn't whisper into his ear what that would mean for Roe v Wade should a conservative ever become president and use his precedent against the Supreme Court.

Remember, abortion is a sacrament for the Left, and more dear to their hearts than nearly anything else, even buggery.

John Navratil| 2.8.11 @ 10:24AM

Dave,

Well said!

As an afterthought, realize that there are an infinitude of laws which ARE constitutional which have never been passed. There isn't a law on the books which cannot, in theory at least, be repealed.

Out real salvation in not in the Supreme Court, but in the will of the people expressed through the Congress.

May I bring you another cup of tea?

Stormzeye| 2.8.11 @ 2:57PM

I agree, John. The fate of the Republic does not rest in the hands of one man...Justice Anthony Kennedy.
It rests in the hands of the voters when they deny Obambi a second term in favor of a president who will not veto a complete repeal.

Al Adab| 2.8.11 @ 10:49AM

All the remaining arguments take the form of anecdotal ones. For example, the inability to purchase insurance due to conditions of actuarial risk cannot be construed to create a claim against the general public or community at large.

Involuntary extractions from that community are not justified on the basis of individual need. Many avenues exist by which persons may provide for their own needs of which insurance is but one. No right to to coverage at others expanse exists or can be created in law without violating the property rights of those from whom the extraction come.

In the past states and citizens have looked askance at law they felt to be unconstitutional, Now 27 states maintain that this one is such a law. Several have adopted "opt out" positions. The situation is simple. Many speak with one voice now, "We will not comply."

Richard| 2.8.11 @ 12:41PM

Ezra Klein? Wasn't he the one who said that the Constitution was incomprehensible because it was more than 100 years old? And this savant, Klein, is 26 years old. And why is the author considering Klein's opinion at all?

Bill| 2.8.11 @ 12:41PM

Of course, there's always the fact that the "musket mandate" argument bolsters the individual right argument in Second Amendment cases.

I find it interesting that those who see the Constitution as a living document (whatever a living document might be) are harkening back to 1792 now. Maybe eventually they can be won over to the argument from original intent.

JackKemp| 2.8.11 @ 1:34PM

I am required to buy a musket or gun? Great. I'll bring it with me to the ObamaCare doctor's office and demand quality healthcare!

Dennis| 2.8.11 @ 1:43PM

Whether the SCOTUS overturns ObamaCare the libs are truly grasping for straws with these arguments...

Vic| 2.8.11 @ 2:31PM

I would be a little slow to put much faith in our legal system protecting us from a government in witch they have made themselves our oligarchic rulers.

Jack London| 2.8.11 @ 3:47PM

'To paraphrase Wilde, all bad journalism springs from genuine feeling.'

It was Wilde who also said: 'America is the only country that went from barbarism to decadence without civilization in between.'

Which sums up this dreadful David Catron and his genuine feelings to take America down in an orgy of benefits for the rich and death by denial for the poor.

Skippy| 2.8.11 @ 5:51PM

Tragically prescient of Wilde to recognize our core so simply and eloquently.
Guess we'd better tell the millions worldwide yearning to be free that Mr. Wilde nailed us so long ago.
Return to your plows, peasants!
No freedom for you!
I never realized what a decadent, uncivilized barbarian I was.
Feels rather liberating though.
Back to sacking and pillaging!

Oldefarte| 2.8.11 @ 4:27PM

With all due respect to our judicial system, the fact that liberal Democrats dominate its ranks makes me depressed at the potential favorable opinion outcome from these lawsuits. My primary hope comes from the elections of 11/2/10 and those of November 2012 and beyond. I pray that American taxpayer-voters have now seen their remarkably stupid mistake and their will to remedy same!!!!

Timely Renewed | 2.8.11 @ 7:23PM

Judge Vinson's decision is good news, and we all hope that it will prevail when Obamacare finally reaches the Supreme Court two years from now. However, that is not certain, and we should not underestimate the Supreme Court precedents which have vastly expanded the scope of the interstate commerce clause since 1937. The only sure way to stop not only Obamacare, but the innumerable other ways in which the federal government has increased its power beyond the original scope of the Constitution, is to reverse those Supreme Court cases and restore the interstate commerce clause to its original meaning. Given how entrenched these Supreme Court precedents are, I believe that this will require a constitutional amendment restating the original, very limited scope of the interstate commerce clause. See http://www.timelyrenewed.com

TEA bee| 2.9.11 @ 3:37AM

BTW ---you REALLY want to delve into what's
coming in 'health issues' CHECK OUT Alan Watt's
layout of Monsanto's GMO destruction of the
food chain now underway (on Youtube).

Remember: Globalism = Eugenics = You-genocide

--NOT JOKING-

Publius| 2.9.11 @ 9:39AM

"The Washington Post's Ezra Klein provides an amusing twist on that widely disseminated fiction. "

Honestly, who believes Ezra is anything but a young kid who is way out-driving his headlights. Didn't his last piece of Constitutional analysis render the entire document irrelevant since it is over "100 years" old?

Little Ezra is the WP's sop to the Obama Administration; with much of his material coming directly from WH talking points.
Move along, nothing to see here (at least with respect to little Ezra).

Publius| 2.9.11 @ 9:43AM

Let's arrange it so that when the [Un]Affordable Care Act comes up before the SOTUS, that a vast majority of states have voted on nullification. It would be good for the Justices to consider that as they deliberate.

bee free| 2.10.11 @ 9:51PM

"----At the moment we are going through the
sterilization phase of the Globlist eugenics agenda.
Most of it's covert: GMO and tainted foods, vaccines etc.
NOTICE that those MASSIVE infertility
trends scarecly get a mention in our controlled
media ---much less study, exposure and action."
-Alan Watt
Cutting Through the Matrix
(online)

ObamaCare, BTW, entirely scripted by the corporate
insurance (eugenics) front, really IS the perfect
vehicle for pushing along 'the agenda'...

Reebok | 8.11.11 @ 4:05AM

is good

العاب | 4.11.12 @ 4:37PM

is good

very nic

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