Wednesday, February 09, 2011

Double Teamed

The House is planning to block health care funds, but, regardless of how it plays politically, it seems like an empty effort with the Senate and White House opposed to the plan.  So the real action, for now, is what the Supreme Court will say when they decide on Obamacare's constitutionality.

This won't be for a while, but things are already heating up.  Two top legal profs, Laurence Tribe in The New York Times and Akhil Reed Amar in the LA Times, have put out editorials stating the Supreme Court has to find the law constitutional.  Some of their arguments I find weak, but hey, that's how it goes.  People disagree.  What surprises me is the arrogance with which they state their claims.

Reed treats Judge Vinson's opinion declaring Obamacare unconstitutional as if it were one long, crude error.  Here's how he begins:

Earlier this week, after grading student papers from my Yale Law School class on constitutional law, I began reading federal District Judge Roger Vinson's recent opinion declaring "Obamacare" unconstitutional. One thing was immediately clear: My students understand the Constitution better than the judge.

I strive to be apolitical in evaluating students and judges alike. Over the years, many of my favorite students have been proud conservatives, while others have been flaming liberals. The Constitution belongs to neither party.

As every first-year law student learns, lower court judges must heed Supreme Court precedents.

I like the first clause--just in case you didn't know who he is.

Next thing, he's noting his students know the law better, that first-year students get it while Judge Vinson doesn't, and your mother wears army boots.  If Reed has an argument, perhaps he should make it without a preface of schoolyard taunts.

He notes he strives to be apolitical.  Based on what I read below, he fails.  He also notes the Constitution belongs to neither party.  Correct, but a non sequitur.

I'm not going into the content of his argument, but please read it and see if you feel it's as open and shut as he believes.  Maybe he has a good case, maybe Congress (as his logic dictates) has the power to send every citizen a yearly budget stating how all money must be spent.  But isn't it at least possible this case presents some novel issues that are open to differing opinions?

He ends worse than he begins:

Obamacare's opponents are free to vote for politicians who will repeal it. They should not use seats on lower courts to distort the Constitution, disregard applicable precedents and disrespect a duly elected Congress, which gave Americans in early 2010 exactly what the winning party platform promised in November 2008.

In 1857, another judge named Roger distorted the Constitution, disregarded precedent, disrespected Congress and proclaimed that the basic platform of one of America's two major political parties was unconstitutional. The case was Dred Scott vs. Sanford, involving a slave who sued for his freedom because he had lived with his master in places where Congress had banned slavery. In an opinion by Chief Justice Roger Taney, the court not only ruled against Scott, saying that even free blacks were not citizens and therefore had no right to sue; it also declared the Missouri Compromise, which had outlawed slavery in Northern territories, unconstitutional.

History has not been kind to that judge. Roger Vinson, meet Roger Taney.

The first paragraph claims Congress gave the people what they promised.  First, who cares?  That's not the issue here.  Second, this is close to a lie through implication--that Congress was doing the will of the people and that should be respected--and an unnecessary one for Reed's argument, so I don't understand why he says it.  People voted for the Dems in 2008 for a lot of reasons, but rarely for the vague boilerplate in their platform about health care.  If Reed really wanted to explain what occurred, he would note the law was forced through in a party-line vote against the will of the public, who responded by kicking out large portions of the party in charge, and who oppose the law to this day.  But if it's legal, it's legal, if it's not, it's not.

Then Reed descends about as low as he can go and compares Vinson's opinion to Dred Scott.  Whether Reed has a solid hold on Dred Scott I don't know, but it's irrelevant.  The case is the most reviled in American jurisprudence, and all sides shout imprecations, explaining how whatever it is they don't like at present is the same thing that led to Chief Justice Taney's opinion.

These invocations of Dred Scott are, in every case, shameful.  But, if possible, it's extra shameful to compare a case that supported slavery to a case that says individuals are free to make their own choices.

Perhaps because Tribe knows everyone reads the Times, including the Supreme Court, he goes in another direction.  Rather than attack the lower court, he butters up the high court.  He doesn't even entertain the notion the Supreme Court would be so foolish as to find any part of Obamacare unconstitutional.  They're too smart, rational and fair to every do anything so uncool.

Some samples:

...the predictions of a partisan 5-4 split rest on a misunderstanding of the court and the Constitution. The constitutionality of the health care law is not one of those novel, one-off issues, like the outcome of the 2000 presidential election, that have at times created the impression of Supreme Court justices as political actors rather than legal analysts.

[....] To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity.

Justice Anthony Kennedy, whom many unfairly caricature as the “swing vote,” deserves better as well.

[....] The justices aren’t likely to be misled by the reasoning that prompted two of the four federal courts that have ruled on this legislation to invalidate it...

[....] There is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty...

[....] Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law.


He's sending out a message to the Court--especially to Justice Kennedy--letting them know what he expects of them. No one can say how they'll vote, but if Tribe can just move one of Alito, Kennedy, Roberts, Scalia or Thomas close enough to the center that the Justice writes one of those worthless "on the one hand..." opinions, mission accomplished.

I don't think I'm reading too much into these pieces to say that Reed and Tribe are nervous.  They know it's actually possible the lower courts will be upheld.  So they don't just make legal arguments, they try to set up the grounds for what is an acceptable argument to begin with.  Combining the two, I get something like this:

We understand the Constitution better than you and we, impartial we, declare there is no serious argument against Obamacare.  Any judge who finds otherwise does so through pure partisanship.  And only one side can be partisan in this case.  If you vote against our beliefs, you're an incompetent boob who will deserve, and most assuredly get, scathing contempt for the rest of your career and beyond.  If you vote our way, you'll be rewarded with loving words in the top papers and periodicals that all your friends read.  Resistance is futile.

12 Comments:

Anonymous Anonymous said...

It's an empty effort to defund only if they do not stick to it. Otherwise, it's quite effective.

4:39 AM, February 09, 2011  
Anonymous Anonymous said...

Very Clever-the last paragraph could apply to either Larry and Akhil or to you as poster.

7:01 AM, February 09, 2011  
Anonymous Denver Guy said...

Here is Richard Epstein's take on the challenge to ObamaCare.

http://www.nationalreview.com/corner/255188/obamacare-now-ropes-richard-epstein

I like that Epstein provides a pretty straight forward legal analysis, without defaming those who might disagree with him. Of course, Prof. Epstein is used to having many people disagree with him - I'm sure he's learned to deal with it.

10:01 AM, February 09, 2011  
Blogger LAGuy said...

I feared someone would be silly enough to compare me to the profs. I could point out the obvious differences, but rather, I'll just compare Anon #2's comment to the Dred Scott decision.

11:51 AM, February 09, 2011  
Anonymous Anonymous said...

Now a bunch of lefties in Congress are demanding Clarence Thomas recuse himself. This is blatant partisanship that fools no one.

Ironically, there is one Justice who practically has to recuse herself, Elena Kagan. She actually argued on behalf of Obamacare for the government. I'm hoping she'll do the right thing, but I know those weasels in Congress won't ask her to.

12:03 PM, February 09, 2011  
Anonymous Anonymous said...

Maybe you should prepare a flowchart for when to compare a legal decision to Dred Scott.

Code word: lainquet

Sacre Sarkozy!

2:43 PM, February 09, 2011  
Anonymous Anonymous said...

According to their grumpy arguments, not buying insurance is a commercial choice that makes citizens freeloaders (though they're freedloaders because other government rules allow them to freeload), and therefore they can be regulated under the commerce clause.

Following this logic, people who fail to take affirmative measures and take on costs that would make them lose weight, quit smoking, protect themselves from too much sun, eat nutritious meals, sleep better, floss, exercise more or anything else that would improve their health would also be subject to regulation under the commerce clause.

2:55 PM, February 09, 2011  
Anonymous Anonymous said...

You are kidding, right? That's exactly what their logic is. They wouldn't be bashful about that at all; they would just not say it for the press because it's not popular. And don't have any doubt that the Commerce Clause will allow them to institutionalize conservatives, too, as suffering from a lack of mental health parity.

5:01 AM, February 10, 2011  
Anonymous Denver Guy said...

The fact that US Laws allow people to freeload health care cannot be the issue. Obamacare doesn't end rfree-loading, it simply redistributes the burden.

Right now, all who pay taxes for medicaid, insurance premiums, or directly pay their medical bills, pay for the health care of those who don't. This is because Hospitals by law cannot turn away those unable to pay for emergency treatment, so the they pass the cost on to everyone else. In this sense, we already have 100% national health care.

The problem with this system is it encourages rapidly increasing costs for medical service, and thus insurance premiums and taxes.

ObamaCare's dream is to reduce the cost of medical services by encouraging people to seek preventive care in a more orderly fashion via government mandated insurance, but at the cost of adding another layer of bureaucracy into the already complicated system we have for obtaining health care.

I believe that 1) people who don't obtain insurance now overwhelmingly won't seek preventive care in much greater numbers because they have government mandated (and subsidized) insurance, and 2) the inefficiencies of the new government controlled insurance exchanges and mandates will far outweigh any savings that might be generated.

I'm for a gov't guaranty of basic health service, but the most efficient way to accomplish this goal is to simply have government owned/run clinics and hospitals that serve the indigent directly. The cost of this service is born by the entire class of tax payers, a fairly broad distribution.

10:40 AM, February 10, 2011  
Anonymous Anonymous said...

Denver Guy, freeloading is the issue. We're not talking about the wisdom of Obamacare, just its constitutionality. According to people like Tribe and Reed, who sound like Reagan on welfare queens, people who don't buy insurance are freeloading on the system. This means everyone else has to pay for them and this has obvious implications for interstate commerce, and thus they can be regulated by Congress.

10:48 AM, February 10, 2011  
Anonymous Denver Guy said...

I understand that will be part of the constitutional question. I'm noting that as a policy matter, Obamacare does not get rid of "freeloading," it just subsidizes it in a different way. That way may be unconstitutional, but I think if they had simply paid for ObamaCare with a tax, it would pass Constitutional muster.

2:58 PM, February 10, 2011  
Anonymous Anonymous said...

They couldn't pass Obamacare with a tax because Obama promised no new taxes for people making less that 250 G's. Now that it's being challenged, they are claiming in court it's a tax. And Akhil Reed says since they could tax it, it's the same to require people to pay. So since they can tax us at up to 100%, that means they could require us to buy anything they want, and leave us nothing for ourselves.

4:02 PM, February 10, 2011  

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