The Right Prescription

Progressive Puling About the Obamacare Hearings

Obamacare advocates blame its legal troubles on everything but flaws in the actual law.

By 4.2.12

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When Obamacare's passage two years ago produced the constitutional challenges that eventually led to last week's oral arguments before the Supreme Court, our friends on the left sneered. They told us the lawsuits were frivolous publicity stunts doomed to be laughed out of the lower courts and that the justices of the highest court in the land would never stoop to hear them. The progressive pundits were wrong, of course, largely because very few of them actually listened to and comprehended the basic arguments. Now that the defense of Obamacare has turned out to be a "train wreck," as CNN's Jeffrey Toobin described it, the usual suspects are blaming the disaster on the incompetence of the Solicitor General, the biases of the Court's conservative justices, and even the diffidence of the liberal justices. Predictably, our lefty friends are wrong again.

These talking points are not merely incorrect, however. They offer a revealing glimpse into the cynicism of the left. The first instinct of the Democrats and their media lickspittles is to assassinate the character of anyone, including lifelong liberals, who disagree with them or simply fail to live up to their unrealistic expectations. This latter crime was committed by Solicitor General Donald Verrilli last Tuesday, when he had to stand before the United States Supreme Court and attempt to defend the individual mandate. Like any honest man forced to make a fundamentally dishonest argument, he had trouble making the sale. He stumbled, coughed, and often seemed at a loss for words. And for this sin, he has been relentlessly criticized and even ridiculed by people who he probably thought were on his team.

A typically despicable attack was leveled at Verrilli by the eminent legal scholars at Mother Jones: "Sounding less like a world-class lawyer and more like a teenager giving an oral presentation for the first time, Verrilli delivered a rambling, apprehensive legal defense of liberalism's biggest domestic accomplishment since the 1960s -- and one that may well have doubled as its eulogy." Some of the left's Monday morning quarterbacks actually had the audacity to give him advice on how he should have argued the case. Yale law professor Akhil Reed Amar, writing in Slate, imagines himself standing in Verrilli's shoes and knocking every question from the Supremes out of the park: "Solicitor General Donald Verrilli was grilled by the Supreme Court's conservatives. Here is what he should have said …"

Amar, like most of Verrilli's other progressive critics, has been warming the bench in academia while the Solicitor General has actually been playing in the big leagues. Having graduated from Columbia Law, Verrilli clerked for Supreme Court Justice William Brennan and went on to become a senior litigator at one of the country's most prestigious law firms. In government, he has served as Deputy Counsel to the President, Associate United States Deputy Attorney General and eventually rose to his current post after it was vacated by Elena Kagan. Verrilli has also argued seventeen previous cases before the Supreme Court. So, Obamacare's bad week in Court was not caused by an inexperienced or incompetent Solicitor General. It was caused by the law itself. It is an obviously unconstitutional statute that simply cannot be honestly defended.

Progressive puling about Obamacare's legal woes has by no means been limited to cheap shots at Donald Verrilli, of course. There has also been a plethora of columns from left-leaning pundits who tell us that the real problem was the Republican-appointed justices. The New Republic's Jonathan Cohn writes, "Even now, I have trouble wrapping my mind around what I saw in the courtroom this week and what a majority of the justices may be contemplating." Cohn, like so many progressive journalists, has had trouble "wrapping his mind" around any opinion concerning Obamacare's constitutionality that doesn't concur with his own naïve view. Thus, he pronounces himself deeply shocked that Justice Kennedy could suggest to the government's lawyers that they had "a heavy burden of justification to show authorization under the Constitution."

Indeed, Cohn has somehow convinced himself that the burden of justification is on the Court itself: "[T]he heavy burden in this case is on the justices threatening to strike down health care reform. They have not met it." If the reasoning behind this bizarre assertion seems a little muddled, it is abundantly clear that Cohn believes a ruling against Obamacare cannot possibly be arrived at on the merits. It would, by definition, be a purely political decision made by "a bare partisan majority, with the five Republican appointees overruling the four Democratic appointees. The decision would appear nakedly partisan and utterly devoid of principle. Appearances would not be deceiving." Cohn, like so many of his progressive comrades, is unable to conceive of a Supreme Court that isn't as politicized as the editorial staff of TNR.

This view of the Supreme Court is held by many progressives, no matter how often people with actual experience of the institution explain that it simply isn't true. Jennifer Rubin, whose knowledge of the Court is considerable, has explained it thus: "[I]n the real world, the court does not act as an arm of Congress… the court is fundamentally unlike the two political branches, and the justices, from Sonia Sotomayor to Antonin Scalia, regard themselves not as political players but as judges." For evidence supporting Rubin one need look no further than Bush v. Gore, in which the Court ruled the recount scheme cooked up by the Democrats who ran Florida in 2000 unconstitutional. That 7-2 decision, in other words, required two liberal justices to rule against the candidate for whom they had probably voted.

And, speaking of liberal justices, some progressive legal experts have even blamed the Court's Democrat appointees for contributing to the "train wreck." Bradley Joondeph of Santa Clara Law, for example, writes that "One of the most striking things to me about the argument is how unstrategic many of the questions were from the liberals … many of the questions from the Democratic appointees were not in any way designed to probe matters or elicit answers that might bring around their more conservative colleagues." Joondeph excludes Justice Kagan from this criticism, as well he might. She often sounded as if she were before the Court arguing the case for the government rather than listening objectively to both sides. Strangely enough, it sounded almost as if she had participated in preparing the government's case.

Kagan's assistance didn't help, however. In the end, things looked pretty grim for Obamacare, and particularly for the individual mandate. But our progressive friends still can't figure out why. The problem must be the incompetence of the Solicitor General, the biases of the conservative justices or the weakness of the Court's liberals. They seem incapable of grasping that the law is unsound constitutionally. And it isn't clear that, even if they did grasp this reality, they would care. Very few of them believe that an old, yellowing document stashed in the National Archives building has anything to do with this or any other challenge we face in the new millennium. And, once again, they are wrong. It is the leash that restrains an ever-growing and ever-more-ravenous central government. If Obamacare is permitted to stand, the beast will get loose and run amok.

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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.