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The Spectacle Blog
This morning Judicial Watch hosted an interesting panel discussion on the likelihood of Obamacare being overturned by the Supreme Court. Former New York Lt. Gov. Betsy McCaughey, former Florida Attorney General Bill McCollum, and attorney Lee Casey ably explained the constitutional issues at hand, the flaws and problems wit the new law as a matter of policy, how those problems intersected with the legal questions, and substantial federal power grab the health care law represents.
McCaughey began with an animated speech questioning the Obama adminstration’s key premises. She noted studies that showed at least 50 percent of the population annually spends almost nothing on health care, suggesting that health care isn’t really universal commerce. She held up the unwieldy bill for display repeatedly. McCaughey questioned the silence of women’s groups on the privacy issues Obamacare raises, saying that if a woman has the right to choose an abortion surely she can choose to have a hip replacement.
Both McCaughey and McCollum, who spearheaded Florida’s legal challenge to Obamacare before the ink was dry, cited teh 11th Circuit Cour of APpeals ruling that concluded “the individual mandate is breathtaking in its scope…. It is over inclusive in when it regulates: it conflates those who presently consume health care with those who will not consume health care for many years into the future.”
McCollum argued that the states do have standing to file a federal lawsuit against the Affordable Care Act, calling the law an unprecedented assault on state sovereignty. Lee Casey echoed many of these concerns, emphasizing that the Constitution does not confer upon the federal government a general police power. Neither the commerce clause nor the necessary and proper clause, he maintained, could be read apart from the federal government’s limited, enumerated powers.
Casey felt Justice Anthony Kennedy’s past jurisprudence in federalism cases gives reasons for optimism in this case, though he quipped that one shouldn’t “count their Supreme Court justices before they vote.” McCollum said he couldn’t be sure of the outcome, but felt that the merits of the anti-Obamacare argument were very strong. McCaughey said hopefully, “Freedom will prevail.”
View all comments (16) | Leave a comment
More Blog Posts by W. James Antle, III
http://spectator.org/blog/2012/03/22/watching-the-supreme-court-on
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Derek Leaberry| 3.22.12 @ 5:27PM
Call me pessimistic- who couldn't be in this disturbed world- but I would guess that Anthony Kennedy will want to be on the "right" side- rather the left side- of history and support Obamacare( Commerce Clause) and, when the time comes, force homosexual marriage down the throats of all 50 states(14th Amendment). He will be lionized and praised by the left as the judicial guiding hand of his era. The Republican Party and the so-called Conservative Movement will impotently rage about both decisions but ultimately do nothing. What can be expected of the Stupid Party.
Drek| 3.22.12 @ 6:12PM
As Kennedy folded in Lawrence, he'll fold on Obamacare.
If obamacare is to be thrown on to the ash heap of history, the American electorate will have to do it, for the judiciary will not.
RJ| 3.22.12 @ 7:14PM
I think Justice Kennedy has a special sensitivity for individual liberty. More likely than not, he will find Obama Care unconstitutional for this reason.
You are right on the main issue. The American electorate should not rely on the judicial branch for the elimination of Obama Care. We the voters should take matters in our own hands through the election process.
WL| 3.23.12 @ 12:08AM
In some ways, I think that a judicial victory has it's drawbacks....First and Foremost, it will be a net positive, if it happens; however, can you imagine how much shelved capital will hit the marketplace if it gets struck down (at least entirely)....it would give an eager propaganda machine plenty of reason to start the national information push about how the policies of this idiot president are pulling the Titanic from the bottom of the Atlantic...all by himself...
No, I think the best case here is for the Supreme court to strike down the individual mandate only...then let the law explode in projected costs...wake up a few idiot moderates...de-spirit the takers in the country...and give our side some much needed REAL relief from the worry that we have lost every last stinking battle for the last 3 years.... If you think about it...the only battles we have won have been elections...which are important...but the people we elected have gained us no real identifiable results...They have probably yielded us some unseen results...but we know how much those have on our 2nd grade electorate...
So in short, I hope kennedy splits the baby and goes along for the mandate takedown, but leaves the rest standing. .. If that were to happen, political takedown would be much easier...for the finale.
RJ| 3.23.12 @ 12:44AM
All good points, WL. I really want the mandate declared illegal, because otherwise, what limit is there to federal power? (I wish Scalia voted the other way on the Raich case.)
We certainly won the 2010 elections and the John Boehner led House of Representatives has been very disappointing. I think that has helped depress voting in the Republican primaries this year - We elected a House Majority and it basically just goes along with 1) increasing the debt limit for a phony spending cut and 2) spending as usual with continuing resolutions.
Mimi| 3.23.12 @ 10:15AM
Look, there is that BOATLOAD of Republican House passed Bills not allowed to come to the floor of the Senate....Blame HARRY REID who gets his orders from HEADQUARTERS!!
Scott| 3.23.12 @ 12:12AM
Kennedy rightly gets rapped for a lot of his decisions, but he actually has a pretty good record on federalism cases. I think in his case it'll hinge on whether or not he's worried about the Pandora's box upholding the individual mandate will open.
I find myself more worried about Roberts, who joined in the majority opinion in the Comstock case, which enunciated a pretty broad view of federal power.
WL| 3.23.12 @ 12:30AM
You hit on a very important fear I have, when you brought other justices into the conversation, other than Kennedy, who is the obvious swing vote...
That fear is that one of them that we usually count on will turn out to be a mole...and do the ol'dive that we are accustomed to expect from any group of conservatives we are counting on...
If we need 4 conservative votes and we have 4 conservatives....1 of the 4 will break ranks...
If we need 4 conservative votes and we have 5 conservatives....2 of the 4 will break ranks...
Call me crazy, but whatever the situation...and whichever body of power we are counting on...There are always just enough breakaways to defeat a good decision/law etc....
Drek| 3.23.12 @ 6:00AM
Some of you don't understand the social pressure Kennedy will be under.
If Kennedy rules against the Left, they'll make his life hell.
Endless articles, endless law review criticism, endless seminars where various supposed experts will hold forth on how Kennedy was brainwashed by Scalia and Roberts.
For a vain man, and Kennedy is tremendously vain, --------- such considerations prove daunting.
I'll be shocked if the Supreme Court overrules even a portion of obamacare
Scott| 3.23.12 @ 7:14AM
You think he didn't face pressure in Lopez or Morrison? I'm not in the habit of defending Kennedy -- I agree that he does seem to be a rather vain fellow -- but when it comes to federalism cases, I've perceived a certain degree of consistency in his thinking. The problem is that his past consistency doesn't make it entirely clear how he'll vote in this case. On the one hand, when the subject in question is related to commerce (such as a commodity that can be bought or sold), he has supported Congress's ability to regulate it (see Gonzalez v. Raich) -- but so has Scalia. On the other hand, there is a difference between regulating existing activity pertaining to a commodity that is part of interstate commerce and mandating such activity, and Kennedy has expressed the belief that there are limits as to what Congress can do in the name of the Commerce Clause.
Frankly, I think the case will hinge on whether or not they want to open a rather sizeable can of worms by declaring that Congress has the ability to compel individuals to engage in an activity that affects interstate commerce. I don't think that, short of declaring that Congress can then do anything (which I don't think at least 5 justices are willing to do), the Court can create a rational framework to govern when Congress can and cannot act if they approve the individual mandate. So it really boils down to whether or not the justices want to have to adjudicate that issue every time it comes up. I'm not sure that even the liberals want to have to do that.
Bob K.| 3.23.12 @ 9:33AM
Seriously! Declare that "Congress can then do anything..."!
Congress has been proving for quite a while now that it can't do anything!
Floyd Looney | 3.23.12 @ 9:04AM
The GOP establishment won't allow ObamaCare to be repealed and Romney wouldn't sign it anyway. The SCOTUS will probably not hrow it out.
Mimi| 3.23.12 @ 10:26AM
I am expecting that we will witness the UN-DOING of this totally un-constitutional LIBERAL administration. They have extorted power by lies to the 2008 voters. They have gone way too far! A marked correction is in order....Many of us Patriots have literally cried for this day....the NATION will win out . The LAW will always be our final SAVIOR !!
martin j smith| 3.23.12 @ 10:36AM
As I have previously stated if SCOTUS upholds an unpopular piece of legislation then SCOTUS will lose tremendous standing in the nation and it will perceived as antagonistic to the will of the people--which would be a very bad thing indeed.
Scott| 3.23.12 @ 2:04PM
It occurs to me that one way to break up the presumed liberal bloc on this case is for one of the lawyers arguing against Obamacare to look any of those four in the eye, ask them to consider what a Republican president and a Republican Congress could do with the power upholding the law would create, and then smile evilly. I have to think at least one of them would lose their nerve and vote to strike down the law.
Kevin Reitterer| 4.8.12 @ 11:44PM
From hearing the few sound bites from the supreme court justices asking the "are you smarter than a 5th grader" questions, the whole bill clearly is unconstitutional and any justices that vote FOR this bill should be terminated from their positions immediately when the vote comes if it has to take till June......furthermore, all the expense burned on this legislation should be reimbursed to the tax payers, including every red cent on the implementation so far as well as the money spent on the town hall meetings & the saleries of all congress people wasting their time on the congressional vote