{"id":5242,"date":"2012-03-28T23:49:36","date_gmt":"2012-03-29T03:49:36","guid":{"rendered":"http:\/\/www.thedailygouge.com\/?p=5242"},"modified":"2012-03-28T23:50:05","modified_gmt":"2012-03-29T03:50:05","slug":"the-daily-gouge-thursday-march-29th-2012","status":"publish","type":"post","link":"https:\/\/www.thedailygouge.com\/?p=5242","title":{"rendered":"The Daily Gouge, Thursday, March 29th, 2012"},"content":{"rendered":"

It’s Thursday, March 29th, 2012….and here’s The Gouge!<\/strong><\/p>\n

Leading off the Thursday edition, three takes on Day 3 of ObamaScare before the bar; first up, the WSJ<\/em>:<\/strong><\/p>\n

The ObamaCare Reckoning<\/span><\/h1>\n

Overturning the whole law would be an act of judicial restraint.<\/span><\/h2>\n

 <\/p>\n

After the third and final day of Supreme Court scrutiny of the Affordable Care Act, the bravado of the legal establishment has turned to uncertainty and in some cases outright panic. Everyone who said the decision was an easy fait accompli<\/em> has been proven wrong by a Court that has treated the constitutional questions that ObamaCare poses with the seriousness they deserve.<\/span><\/strong><\/span><\/p>\n

This reckoning has also been a marvelous public education. The oral arguments have detailed the multiple ways in which the individual mandate upsets the careful equilibrium of the American political system.<\/span> The Obama Administration’s arguments in favor of the mandate to buy health insurance or pay a penalty stand exposed as a demand for unlimited federal power.<\/strong><\/span><\/p>\n

Most of the Justices seem to be discomfited by this proposition, to one degree or another, and in Wednesday’s session they grappled with the Court’s options and the consequences if the mandate falls. Over the hour-long exchange the Justices conducted a tutorial about the limits of judicial<\/em> power in handling a huge bill if its core is found to be unconstitutional.<\/p>\n

The issue is known as “severability,” or what happens to the rest of a law if part of it is struck down. Usually Congress includes a clause that clearly defines its intent in that event.<\/span> But the Obama Democrats neglected to include one amid the political rush to pass the law, and Supreme Court precedents are less than clear. (Purposefully in our opinion.)<\/span><\/strong><\/span><\/p>\n

The Court could uphold the individual mandate, in which case the point is moot. It could overturn the mandate without invalidating any other provision. Or it could say that everything else never would have passed without the mandate, so everything else should be taken down with it.<\/p>\n

That last is the persuasive contention of Paul Clement, the attorney who argued for the 26 states challenging the law. He argued that the mandate is “the very heart of this act” because it is meant to subsidize the insurance regulations that drive up costs. It forces the younger and healthier to buy coverage they may not need to finance people who consume more health care.<\/span><\/span><\/strong><\/p>\n

That requirement is also tied to ObamaCare’s “exchanges” where everyone will buy coverage, which are in turn tied to the new entitlement subsidies, which are in turn tied to the Medicaid expansion, the many tax increases and all the other things on the periphery of the law that wouldn’t have passed without the individual mandate.<\/span><\/strong><\/p>\n

Justice Ruth Bader Ginsburg said Mr. Clement is asking the Court to conduct “a wrecking operation,” before stating that “the more conservative approach would be salvage rather than throwing out everything.” The Obama Administration didn’t say exactly that, but it did argue that the mandate is indispensable to its supposedly well-oiled regulatory scheme and if it is thrown out the insurance rules should be too.<\/p>\n

But Justice Anthony Kennedy doubted Justice Ginsburg’s logic, since by taking out only the individual mandate the Court would in effect be creating a new law that Congress “did not provide for, did not consider.” To wit, costs would soar without any mechanism to offset them.<\/span><\/strong><\/span><\/p>\n

“When you say judicial restraint,” Justice Kennedy said, “you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the act.<\/span> I suggest to you it might be quite the opposite<\/em><\/span>.”<\/span> Overturning the mandate alone, he continued, “can be argued at least to be a more extreme exercise of judicial power than to strike the whole.”<\/strong><\/span><\/p>\n

Justice Antonin Scalia chimed in to note that severing would require the Justices to comb through ObamaCare’s 2,700 pages and pick out the parts that are connected to the mandate and those that aren’t\u2014essentially asking them to play omniscient time travelers, if not legislators. Striking it down altogether would paradoxically be a gift of judicial modesty by avoiding the legal invention of a new law. A clean slate gives Congress the most options.<\/p>\n

As Mr. Clement argued, the best analogy is the Court’s misbegotten 1976 Buckley<\/em> decision, which struck down some campaign finance provisions but not others and has led to a hash of contradictory and ambiguous rules for political speech that continues to this day.<\/p>\n

The Court’s liberals pushed back by suggesting that the individual mandate is “just a tool to make other provisions work,” as Justice Elena Kagan put it. Yet by that standard the Court ought to strike down the entire law or most of it if it strikes down the mandate, because it shows that Congress used an illegitimate device to do things that it could have done constitutionally without it.<\/span><\/strong><\/span><\/p>\n

So far the larger liberal reckoning hasn’t been as nuanced as the High Court’s, as evidenced by the media mugging of Solicitor General Donald Verrilli. Liberals castigated his performance during oral arguments Tuesday and all but blamed him for any ObamaCare defeat.<\/p>\n

Mr. Verrilli may not be Daniel Webster, but he was more than competent. The problem isn’t that he’s a bad lawyer, it’s that he is defending a bad law with the bad arguments that are the best the Administration could muster.<\/span><\/strong><\/span> Liberal Justices such as Sonia Sotomayor all but begged him to define a limiting principle on the individual mandate and therefore on federal power<\/em>. He couldn’t\u2014not because he didn’t know someone would ask but because such a principle does not exist<\/em><\/span>.<\/span><\/strong><\/span><\/p>\n

Mr. Verrilli came closest to a limiting principle\u2014and got some sympathy from Justice Kennedy\u2014when he claimed that everyone will use health care at some point in their lives, so what’s the big deal with making young people pay more earlier?<\/p>\n

Even if this were true, it is a deeply radical claim. The government is mandating that everyone buy health insurance<\/em> specifically, but by this reasoning any economic or personal decisions that touch on health care<\/em> could be used as a pretext for federal police powers. People who lead healthy lives consume fewer medical services than others, so the government could mandate exercise, a healthy diet, and more.<\/p>\n

This is power without limit, which is not what the Constitution provides, or what its framers intended, or what the Supreme Court has ever tolerated. That is why this week’s arguments have been so careful, why they have revised the establishment’s thinking, and why they are so important for the future of American liberty.<\/span><\/strong><\/span><\/p>\n

Second, James Taranto wonders….
\n<\/strong><\/p>\n

Will the High Court Vindicate Vinson?<\/span><\/h1>\n

Justice Kennedy sounds surprisingly like the judge who struck down ObamaCare in toto.<\/span><\/h2>\n

 <\/p>\n

“ObamaCare defenders will call him a judicial activist,” we wrote in February 2011 about Judge Roger Vinson of the U.S. District Court in Tallahassee, Fla. “That is bunk<\/em><\/span>.<\/span> His ruling is the very model of judicial restraint.”<\/strong><\/span><\/p>\n

We dropped in on the Supreme Court this morning and were pleased to learn that Justices Antonin Scalia and Anthony Kennedy appear to agree. Here’s Kennedy, from the transcript, addressing Deputy Solicitor General Edwin Kneedler:<\/p>\n

When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if one Act was–one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this Court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me can be argued at least to be a more extreme exercise of judicial power than to strike–than striking the whole.<\/em><\/p><\/blockquote>\n

And here’s Scalia:<\/p>\n

Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages?<\/span> And do you really expect the Court to do that? Or do you expect us to–to give this function to our law clerks?<\/span> Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?<\/span><\/em><\/strong><\/span><\/p><\/blockquote>\n

At issue is the question of “severability”–whether a court that strikes down one provision of a law is obliged to toss the rest of the law with it. Vinson thought that he was in this case.<\/strong><\/span> The Obama administration, he wrote, had “conceded that the Act’s health insurance reforms cannot survive without the individual mandate, which is extremely significant because the various insurance provisions, in turn, are the very heart of the Act itself.”<\/strong><\/span><\/p>\n

As ObamaCare made its way up the federal judiciary, Vinson was the lone jurist to accept the plaintiffs’ argument that the individual mandate is not severable. The 11th U.S. Circuit Court of Appeals overruled him on that point, although it upheld his finding that the individual mandate was unconstitutional. All other judges hearing ObamaCare cases have either held the mandate unconstitutional but severable or held the mandate constitutional, thus rendering the severability question moot.<\/p>\n

Oddly, the administration’s position on the mandate’s severability is one no judge has adopted: that it is partly <\/em>severable.<\/span><\/strong> If it goes, Kneedler was there to argue, two other central provisions of the law–“community rating” and “guaranteed issue,” which require insurance companies to issue money-losing policies to people who are already sick–must also fall, but the rest of the law should stand. This appears to have been a too-clever-by-half political calculation, (Which has become the hallmark of this Administration)<\/span> based on the supposition that the justices would be more hesitant to strike down the mandate if it also meant striking down popular freebies.<\/strong><\/span><\/p>\n

By our lights, Kneedler was not a compelling advocate for the government’s position. We suspect that is because he and his colleagues were still reeling from yesterday’s oral arguments, in which Scalia and Kennedy, along with Chief Justice John Roberts and Justice Samuel Alito, asked a lot of tough questions of Solicitor General Donald Verrilli. (We didn’t attend yesterday, but having read the full transcript, we agree with CBS’s Jan Crawford that “Verrilli did a fine job w a mountainous task.” His case, not his legal skills, was weak.)<\/p>\n

The justices’ evident skepticism about the government’s claims took many legal observers (though not this columnist) by surprise. Just last week the likes of Linda Greenhouse and Dahlia Lithwick were proclaiming the case for ObamaCare a no-brainer, flaunting their own brainlessness as if it proved the point<\/em><\/span>.<\/span><\/strong><\/span><\/p>\n

We’re sure the solicitor general and his team are more circumspect, but we’ll bet they were overconfident nonetheless. If the mandate falls–as it suddenly seems much more likely to do–the administration risks compounding its losses by urging the court to strike down more, even if not all, of the law.<\/strong><\/span> So Kneedler must have approached his work today with considerable ambivalence.<\/p>\n

Scalia also argued that the question of severability is every bit as unprecedented as the constitutional question about the individual mandate:<\/p>\n

This is really a case of first impression. I don’t know another case where we have been confronted with this–with this decision: Can you take out the heart of the Act and leave everything else in place?<\/em><\/strong><\/span><\/p><\/blockquote>\n

Kneedler was unable to cite a precedent to satisfy Scalia, but earlier Clement had mentioned a case that somewhat fit the bill: Buckley v. Valeo<\/em> (1976), a free-speech challenge to Watergate-era campaign-finance restrictions:<\/p>\n

In Buckley this Court looked at a statute that tried to, in a coherent way, strike down [sic; he means impose] limits on contributions and closely related expenditures.<\/em><\/p><\/blockquote>\n

This Court struck down the ban on expenditures, left the contribution ban in place, and for 4 decades Congress has tried to fix what’s left of the statute, largely unsuccessfully, whereas it would have I think worked much better from a democratic and separation of powers standpoint if the Court would have said: Look, expenditures are–you can’t limit expenditures under the Constitution; the contribution provision is joined at the hip. Give Congress a chance to actually fix the problem.<\/em><\/p><\/blockquote>\n

Justice Scalia put the matter this way, addressing H. Barton Farr, the court-appointed lawyer who argued the position that the mandate could be struck down without affecting any other provision of the law:<\/strong><\/span><\/p>\n

Mr. Farr, let’s–let’s consider how–how your approach, severing as little as possible there–thereby increases the deference that we’re showing to–to Congress. It seems to me it puts Congress in–in this position: This Act is still in full effect. There is going to be this deficit that used to be made up by the mandatory coverage provision. All that money has to come from somewhere.<\/em><\/span><\/strong><\/p><\/blockquote>\n

You can’t repeal the rest of the Act because you’re not going to get 60 votes in the Senate to repeal the rest. It’s not a matter of enacting a new act. You’ve got to get 60 votes to repeal it. So the rest of the Act is going to be the law.<\/em><\/strong><\/span><\/p><\/blockquote>\n

So you’re just put to the choice of I guess bankrupting insurance companies and the whole system comes tumbling down, or else enacting a Federal subsidy program to the insurance companies, which is what the insurance companies would like, I’m sure.<\/em><\/span><\/strong><\/p><\/blockquote>\n

Do you really think that that is somehow showing deference to Congress and–and respecting the democratic process?<\/em><\/strong><\/span><\/p><\/blockquote>\n

It seems to me it’s a gross distortion of it<\/span>.<\/em><\/span><\/strong><\/p><\/blockquote>\n

As in yesterday’s hearings, the four Democratic appointees ended up advocating for the administration’s position more effectively than its own lawyers<\/em>.<\/span><\/strong> Ruth Bader Ginsburg offered a metaphor in the course of questioning former solicitor general Paul Clement, who argued the case for the 26 states challenging ObamaCare:<\/p>\n

Mr. Clement, there are so many things in this Act that are unquestionably okay. I think you would concede that reauthorizing what is the Indian Healthcare Improvement Act changes to long benefits, why make Congress redo those?<\/strong><\/span> <\/em>(Yeah….right you are Ruth; let’s recast the health care system of 311 million Americans based on the Indian Healthcare Improvement Act!)<\/strong><\/span> I mean it’s a question of whether we say everything you do is no good, now start from scratch, or to say, yes, there are many things in here that have nothing to do frankly with the affordable healthcare and there are some that we think it’s better to let Congress to decide whether it wants them in or out.<\/em><\/p><\/blockquote>\n

So why should we say it’s a choice between a wrecking operation, which is what you are requesting, or a salvage job. And the more conservative approach would be salvage rather than throwing out everything.<\/em><\/p><\/blockquote>\n

One problem for Ginsburg is that her views on severability are irrelevant, except in the unlikely event that she votes to strike down the mandate. If the mandate stands, that obviates the need to choose between a wrecking operation and a salvage job.<\/span><\/strong><\/span><\/p>\n

Anyway, in our view Judge Vinson had a better analogy. Last year he described ObamaCare as being “like a defectively designed watch, [which] needs to be redesigned and reconstructed by the watchmaker.” The Supreme Court is competent to throw the watch out, and nothing stops Congress from making a new one<\/em><\/span>.<\/span><\/strong><\/span><\/p>\n

Lastly, Conn Carroll commenting on the Administration’s case in Wednesday’s Morning Examiner<\/em>….<\/strong><\/p>\n

An Unbounded Failure<\/span><\/h1>\n

 <\/p>\n

On Monday we previewed this week\u2019s Supreme Court oral arguments writing:<\/p>\n

“If you want to know how the Court will decide the case come this summer, pay special attention to how the Obama Justice Department tries to explain what the limits of Congressional power are<\/em><\/span>.”<\/strong><\/span><\/p>\n

This issue has been Obama\u2019s Achilles heel throughout the process of getting to the Supreme Court. Obamacare\u2019s defenders simply have not been able to answer the question: \u201cIf Congress can force people to buy health insurance, then what can\u2019t they force people to do?\u201d<\/span> Or, as the attorney for Obamacare\u2019s challengers, Paul Clement, put it in his opening of his brief: \u201cThe individual mandate rests on a claim of federal power that is both unprecedented and unbounded: the power to compel individuals to engage in commerce in order more effectively to regulate commerce. This asserted power does not exist<\/em><\/span>.\u201d<\/span><\/strong><\/span><\/p>\n

On at least three separate occasions, Obamacare\u2019s Supreme Court Defender Solicitor General Don Verrilli was asked directly by three different justices (Kennedy, Scalia, and Alito) to explain why upholding Obamacare\u2019s individual mandate would not create an unbounded Commerce Clause power. And he failed to provide an adequate answer every time<\/em><\/span>.<\/strong><\/span><\/p>\n

When Kennedy asked him point blank, \u201cWell, then your question is whether or not there are any limits on the Commerce Clause. Can you identify for us some limits on the Commerce Clause?\u201d Verrilli tried to say the mandate was different because it did not force the purchase of a commodity, just how that commodity should be financed. Kennedy didn\u2019t buy it: \u201cBut why not? If Congress \u2014 if Congress says that the interstate commerce is affected, isn\u2019t, according to your view, that the end of the analysis.\u201d<\/p>\n

And later Kennedy again signaled that he rejected the government\u2019s claim that the uniqueness of health care market provided a workable limit to Commerce Clause power. He told National Federation of Independent Businesses Attorney Mike Carvin: \u201cThe government tells us that\u2019s because the insurance market is unique.<\/span> And in the next case, it\u2019ll say the next market is unique<\/em><\/span>.\u201d Exactly<\/em><\/span>.<\/span> All markets are unique.<\/span> Simply stating that health care is different in no way limits government power<\/em><\/span>.<\/strong><\/span><\/p>\n

We will not know till June how Kennedy will vote, but yesterday marked the day that the individual mandates\u2019 demise became more likely than not.<\/p>\n

Based on the three days of oral arguments, we’d like to think ObamaScare is DOA; but then, we never thought the SCOTUS would side with McCain\/Feingold and Kelo.<\/strong><\/p>\n

In a related item, the inimitable Thomas Sowell details the history on how an earlier Supreme Court, quite improperly, stretched the boundaries of the Commerce Clause beyond recognition:<\/strong><\/p>\n

Back to the Future?<\/span><\/h1>\n

 <\/p>\n

When a 1942 Supreme Court decision that most people never heard of makes the front page of the New York Times in 2012, you know that something unusual is going on. What makes that 1942 case — Wickard v. Filburn — important today is that it stretched the federal government’s power so far that the Obama administration is using it as an argument to claim before today’s Supreme Court that it has the legal authority to impose ObamaCare mandates on individuals.<\/strong><\/span><\/p>\n

Roscoe Filburn was an Ohio farmer who grew some wheat to feed his family and some farm animals. But the U.S. Department of Agriculture fined him for growing more wheat than he was allowed to grow under the Agricultural Adjustment Act of 1938, which was passed under Congress’ power to regulate interstate commerce.<\/p>\n

Filburn pointed out that his wheat wasn’t sold, so that it didn’t enter any commerce, interstate or otherwise. Therefore the federal government had no right to tell him how much wheat he grew on his own farm, and which never left his farm.<\/span><\/strong> The Tenth Amendment to the Constitution says that all powers not explicitly given to the federal government belong to the states or to the people. So you might think that Filburn was right.<\/span><\/strong><\/span><\/p>\n

But the Supreme Court said otherwise<\/em><\/span>.<\/strong><\/span> (Which DIDN’T make them right!)<\/strong><\/span> Even though the wheat on Filburn’s farm never entered the market, just the fact that “it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market” meant that it affected interstate commerce.<\/strong><\/span> So did the fact that the home-grown wheat could potentially enter the market.<\/p>\n

The implications of this kind of reasoning reached far beyond farmers and wheat. Once it was established that the federal government could regulate not only interstate commerce itself, but anything with any potential effect on interstate commerce, the Tenth Amendment’s limitations on the powers of the federal government virtually disappeared.<\/strong><\/span><\/p>\n

Over the years, “interstate commerce” became magic words to justify almost any expansion of the federal government’s power, in defiance of the Tenth Amendment.<\/strong><\/span> That is what the Obama administration is depending on to get today’s Supreme Court to uphold its power to tell people that they have to buy the particular health insurance specified by the federal government.<\/p>\n

There was consternation in 1995 when the Supreme Court ruled that carrying a gun near a school was not interstate commerce. That conclusion might seem like only common sense to most people, but it was a close 5 to 4 decision, and it sparked outrage when the phrase “interstate commerce” failed to work its magic in justifying an expansion of the federal government’s power.<\/span><\/strong><\/span><\/p>\n

The 1995 case involved a federal law forbidding anyone from carrying a gun near a school. The states all had the right to pass such laws, and most did, but the issue was whether the federal government could pass such a law under its power to regulate interstate commerce.<\/p>\n

The underlying argument was similar to that in the 1942 case of Wickard v. Filburn: School violence can affect education, which can affect productivity, which can affect interstate commerce.<\/strong><\/span><\/p>\n

Since virtually everything affects virtually everything else, however remotely, “interstate commerce” can justify virtually any expansion of government power, by this kind of sophistry<\/em><\/span>.<\/strong><\/span><\/p>\n

The principle that the legal authority to regulate X implies the authority to regulate anything that can affect X is a huge and dangerous leap of logic, in a world where all sorts of things have some effect on all sorts of other things.<\/p>\n

As an example, take a law that liberals, conservatives and everybody else would agree is valid — namely, that cars have to stop at red lights. Local governments certainly have the right to pass such laws and to punish those who disobey them. No doubt people who are tired or drowsy are more likely to run through a red light than people who are rested and alert. But does that mean that local governments should have the power to order people when to go to bed and when to get up, because their tiredness can have an effect on the likelihood of their driving through a red light?<\/span><\/strong><\/span><\/p>\n

The power to regulate indirect effects is not a slippery slope.<\/strong><\/span> It is the disastrous loss of freedom that lies at the bottom of a slippery slope<\/em><\/span>.<\/strong><\/span><\/p>\n

\"\"<\/a><\/p>\n

Then there’s this from Andrea Mitchell, who, apparently unaware she’s two octaves off key, continues to sing the praises of CastroCare:<\/strong><\/p>\n

<\/object><\/p>\n

One can always depend on the Left to dispel the myth of its supposed neutrality by stubbornly clinging to undeniable untruths.<\/strong><\/p>\n

And since we’re on the subject of refusing to speak the truth….<\/strong><\/p>\n

Ex-MF Global treasurer declines to testify about alleged Corzine money transfer<\/span><\/h1>\n

 <\/p>\n

\"\"<\/a>He’s looking less and less like it every day that passes.<\/span><\/em><\/strong><\/p>\n

A top former MF Global executive declined to testify Wednesday during a House hearing on whether she approved or had knowledge that CEO Jon Corzine approved a transfer of nearly $200 million in customer funds to cover losses days before the brokerage firm collapsed.<\/span><\/p>\n

Edith O’Brien, the firm\u2019s former assistant treasurer, invoked her Fifth Amendment rights to not testify. Her appearance before House Financial Services’ oversight subcommittee came after congressional investigators recently acquired an email contradicting Corzine\u2019s testimony that he did not order the transfer.<\/span><\/strong><\/span><\/p>\n

O’Brien also decline to comment on a published report that she is seeking immunity for her cooperation in an investigation.<\/strong><\/span><\/p>\n