April 4, 2012

Nancy Pelosi predicts a 6-3 victory for ObamaCare

Think she’s reading Allah? (Pelosi makes her prediction at around the 33:55 mark.)

Look, if SCOTUS is as cynical and motivated by the threat of a screeching backlash from the progressives as Allah surmises — and it decides to rule favorably on ObamaCare out of some complex calculus of political variables (include “how people view the tenor and division within the court”) — the c0untry is all but gone, anyway:  after all, there’s no use pretending to be governed by a Constitution that is so unstable that  SCOTUS can plausibly claim that the document itself, written in the aftermath of a revolution fought to shed centralized despotic rule, allows for a federal government to order private citizens to engage in commerce as a way to justify a wealth redistribution scheme, with the young and healthy made to subsidize “universal” health care provisions demanded by the state.

And so  a ruling in favor of ObamaCare, however narrow, is a ruling that would complete the deconstruction of the Constitution itself, and, to may way of thinking, invalidate all law:  if we can’t be expected to anticipate how the law functions, we can’t pretend we’re living under a stable rule of law to begin with. It becomes a ruse, a facade displayed for political expedience but one that grants all authority to an alliance between the legislature and a court that is nothing more than a superlegislative body who, in order to keep up the appearance of judicial independence, will occasionally appeal to the intentions of the founders and framers.

So let’s hope Allah’s wrong — and that the suggestion that any originalist justice could be swayed by a flailing appeal, on the part of the law’s defenders, to the Necessary and Proper Clause, is just an exercise in intellectual caution.  As Landmark Legal argues in its Amicus brief:

The federal government also invokes the Necessary and Proper Clause to defend what is indeed an unprecedented national police power. The Necessary and Proper Clause, however, does not create any additional congressional power, nor does it expand any enumerated power. See Joseph Story, A Familiar Exposition of the Constitution of the United States (Washington, D.C.: Regnery, 1986), Section 208. The individual mandate is not “a discrete and narrow exercise of authority over a small class of persons already subject to…federal power.” United States v. Comstock, 130 S.Ct. 1949, 1968 (2010) (Kennedy, J., concurring). Accordingly, the Necessary and Proper Clause does not justify the individual mandate as Congress never has had the authority to compel private parties to engage in private economic activity based solely on the fact of living.

Defense of this law fails when it appeals to Wickard — consumers aren’t producing wheat, or in this case, health care; therefore the government, even under an expansive reading of the Commerce Clause justified by Wickard, has no regulatory power over their inaction, unless SCOTUS is willing to set precedent that inaction is a form of action (in which case there is nothing that can’t be construed as commerce); it fails when it appeals to Necessary and Proper; it fails when it tries to claim itself a tax after being sold and passed as a penalty, with the President himself publicly denying that the penalty provision was merely a new tax.

If it is upheld, it may just be time to reconsider the kind of country we find ourselves in.  Because American exceptionalism — or rather, the Constitutional framework that has long provided for it — will be gone, subsumed by yet another state that drifts into the tyranny of a centralized, all-powerful government charged with ruling over subjects, not governing with the consent of the governed.




Posted by Jeff G. @ 9:40am

Comments (43)

  1. Given the track record of San Fran Nan’s recent political prognostications, I’d take her latest as a positive sign.

  2. Sorry to be OT so quickly but I have to link this. Figure you’ll get a kick out of it, Jeff.

    Towards the post, I really don’t get the 6-3 count. Scalia?

  3. “Towards the post, I really don’t get the 6-3 count. Scalia?”

    I think the proposal is that CJ Roberts sees the trend toward 5-4 for Obamacare and switches his vote to control the opinion writing himself. Which is also absurd, in my view.

  4. Jesus, Althouse can be such a moe-ron.

  5. How is healthcare interstate commerce? Anyone?

  6. Maybe that line of reasoning involving Roberts is sensible somehow but I don’t see it.

  7. Probably has to do with EMTALA, Pablo. Everything else in this the twilight of judicial reason has.

  8. EMTALA, of course, is tantamount to the federal government sticking a gun in the private sector’s ribs and dictating a positive “right”.

    Unless we fast forward, at which time it also handily becomes the justifying premise to rule Obamacare constitutional.

    We see what they did there.

  9. How is healthcare interstate commerce? Anyone?

    Butterfly effect

  10. It seems to follow an analogy from a Senate practice, I think, where the Majority leader sees a vote going down and switches to the winning side he opposes in order to control future events (like re-raising the bill in question, I think, though possibly other matters). I don’t know of any such history in the Court. If there is such a history, it’s got to be pretty damned rare. And what good would it do? I can’t see it.

  11. How is healthcare interstate commerce? Anyone?

    Because shut up, Pablo.

  12. bitch slapped

    Newly appointed Parliamentarian Elizabeth MacDonough, whom Reid recommended for the job, has decided that last summer’s deal on the debt ceiling and spending caps does not preclude the Senate from taking up other budget resolutions this year. The ruling could force vulnerable Democrats to cast tough votes that hurt them in November, a situation Reid and other leaders are eager to avoid as they work to protect their fragile majority.

    The written opinion, shared late last week with a handful of Democratic and GOP senators, gives Republicans significantly more leverage to push for votes on budgets of their choosing. It could mean roll calls on Rep. Paul Ryan’s House-passed GOP budget plan and others offered by Sens. Pat Toomey (R-Pa.) and Rand Paul (R-Ky.). Democrats would gladly vote down the Ryan blueprint, which Obama described Tuesday as a “radical” vision that guts funding for Medicare and education.


  13. Wow. That Althouse post is astounding. Combine it with all the “conservative” bigshots pushing for Romney — I did a little experiment last evening the results of which I will share with you all later, perhaps — and it’s hard not to conclude that there really is very little conservative presence of note within the leading voices of the “right” new media. No telling how many readers they’ve sucked in as regulars in order to argue them into GOP Party pragmatism.

    I see conspiracies everywhere, though. Sign of the times.

  14. Sorry but LOL bh, as many here have been saying for a while now Althouse is in deed in heat. Which doesn’t seem to matter.

    To the post – I personally don’t think SCOTUS is going to rule in favor but I do agree the great experiment is done if SCOTUS does… or Obamney is elected. Which ever comes first.

  15. Pelosi: wishcasting. She has to predict victory for morale’s sake. Allah has to remain the Eeyorepundit.

    There is something positively Salvador Dali about a bunny rabbit with a pancake on its head.

  16. Althouse voted for Teh Won, didn’t she? Pretty much tells you all you need to know about her political acumen.

  17. Wow. After reading that Althouse love letter to Obama, two things:

    1. Althouse writes her screeds in a PeeChee folder with the name “Barack” scribbled all over it with hearts and flowers.

    2. Romney might read that post and take her advice.

  18. “. . . if we can’t be expected to anticipate how the law functions, we can’t pretend we’re living under a stable rule of law to begin with.”

    In tax filing season, with the complexity of a tax code returning multiple results for any given filing (and hence no certain result at all), we can be assured we’re already living under an intentionally unstable “rule” of law, a pretense, arbitrary and capricious to a purpose: to steal the liberty of the citizens underneath it.

  19. Shorter Althouse:

    I want to be lied to.

  20. If it is upheld, it may just be time to reconsider the kind of country we find ourselves in.

    I’d like to think that our reconsideration wouldn’t enter into it. I’d like to think that the character of the republic would reassert itself, though pushback against Washington’s overreach. I’d like to think that at least a handful of states would simply refuse to play along, forcing the Administration to choose between escalation and recapitulation. At this point, I’d almost prefer that Washington escalate things, if only to immanentize the eschaton.

    Let Texas* tell Washington that it’s not going to recognize or participate in socialized medicine. Let Washington tell Texas that it won’t get any federal Medicare/Medicaid funds. Let Texas tell Washington that it will no longer remit funds, and will encourage its private employers to cease withholding and remittance as well. And that it will keep its power plants on-line and expand petroleum drilling and refining while it’s at it.

    No one even need mention the idea of secession; just refusal to participate in federal schemes which exceed the limits of federal power. Washington’s power comes from inertia and the traditional cooperation of the states and the people; underlying those social phenomena are Washington’s powers of lawmaking and threats of violence. The latter is a non-starter (at least for now; who would support invading Texas?), and it’s way beyond time that a few brave souls challenged the rest.

    If the Districts withhold their tribute, the Capitol will not long stand. We’re lucky that there’s a blockbuster motion picture coming soon to remind people of that fact.

    * or any other state with the will and the means

  21. Wow, that was embarrassingly bad for Althouse. Obama remains a canvas upon which certain segments of the over-educated project their wishes. That they continue to do so suggests a faith that would embarrass Benny Hinn.

  22. 2. Romney might read that post and take her advice.

    Isn’t he already? Romney’s campaign suggests that he’s running a reverse 2008, only now they have the higher gas prices and he’s the platitude-gushing empty suit.

  23. “. . . he’s the platitude-gushing empty suit.”

    In the light of which we have to laugh to keep from weeping on reading:

    JOHN ELLIS: What Romney Has To Do To Win: “The key to a Romney victory is not to defeat President Obama; that would be a byproduct. The key is to make the case that the Blue Social Model is truly dead, that a new model is urgently needed and to present the first rough draft of what the new model might look like. Points one and two are an open-and-shut case. Point three is much riskier, obviously, but will (over time and with repetition) sharpen the points of difference.”

  24. I don’t think Ellis’s advice is necessarily bad sdferr. The New Deal/Great Society isn’t new, isn’t a deal, and isn’t great. The problem is expecting Mitt Romney (and more to the point, the professional nose counters advising him) to do something risky.

  25. Yes. I’m wasn’t pointing at “the advice” to laugh or cry upon, but at Romney’s utter inadequacy to the task, and to any presumption he could acquire any such adequacy at this late date in his life. He isn’t fit.

  26. Pingback: The Spot-On Quote Of The Day… « The Camp Of The Saints

  27. Romney’s idea of “depth” is the narrative of a Donny and Marie song.

  28. Shorter Althouse:

    I want to be lied to.

    Even shorter Althouse (by one letter):

    Tell me you love me.

  29. “The key to a Romney victory is not to defeat President Obama…

    In that case I think he is a shoo in.

  30. Isn’t there a pathology where some women just believe they can fix the guy no matter how bad he is, despite all the history and broken bodies he’s already left in his wake?

  31. “The key to a Romney victory is not to defeat President Obama…”

    Heads Obama wins, tails Romney loses?

  32. Ellis is arguing the same thing that gets tossed around here from time to time: that the easiest way to be “not Obama” is to be a better Obama than Obama. And that’s not exactly winning —irrespective of what the smart, pragmatic bloggers on our side say.

  33. Squid (10:40 AM) nails it for me. What if the Capitol pushed to far with a state such as Texas to bend it to it’s will, and Texas said “go screw”.
    Unfortunately, I don’t see many on our side of things- lookin’ at you, Mittens, Boehner, and co.- who appear to me ready , willing, or able to take the gloves off.

  34. mc4ever59, check out Michael Greve on Sectionalism.

  35. Let Texas tell Washington that it will no longer remit funds, and will encourage its private employers to cease withholding and remittance as well. And that it will keep its power plants on-line and expand petroleum drilling and refining while it’s at it.

    At which point, the IRS will show up and arrest the private employers, the EPA SWAT teams will close the power plants and oil refineries, the US Marshals will arrest the Governor and his staff, and just to keep things honest, the 101st will be sent to Dallas. That precedent was set during Eisenhower’s administration in a place called Little Rock.

    No one will have to say a word about secession. We’ll just need to be prepared to shoot.

  36. Pingback: Just Argh! «

  37. Shorter Althouse:

    I want to be lied to.

    She’s no different than Nishi talking about optics and what not.

  38. Opening Day!

    6-3 victory for the Tigers over the RedSox!

  39. Opening day means no talk radio ALL DAY long.

    What am I gonna do while I’m stuck in the kitchen?

  40. What am I gonna do while I’m stuck in the kitchen?

    eat lunch?

  41. Do you have shoes on?

    Just wondering.

  42. I could use a sandwich. And a beer.

  43. Slippers, cranky. It’s cold up here today.