There are many things that I would like to address regarding the health care case. Today, I'll address two unrelated aspects of the case. First, the apoplexy of the left regarding the performance of their legal team; and second, a different perspective on the consequences for the Supreme Court itself if it upholds the mandate as constitutional.From my email.
While the limited-government, constitutionalist side of this week's legal conflict is happier today than we were last week, as you might expect, the opposite is true on the big government side.
Mere 'unhappiness' doesn't seem to properly describe their reaction... I definitely think 'apoplectic' describes it better.
The professional and unprofessional left has been dumping on their lawyers - especially Solicitor General Verilli. Blame for their bad week is being dumped overwhelmingly, nearly exclusively, on the federal government's alleged poor legal performance.
That's flat out baloney.
The best lawyer in the world can't win a lousy case. Put differently, it's tough to win a hand of poker when you're dealt a 2, 3, 4, 5, and 7.
From the very beginning of this case on March 23, 2010, the professoriate, media, and political left established completely unreasonable expectations regarding the outcome. As recently as this past week - after the hearings - I did a media appearance with Democratic Attorney General Doug Gansler of Maryland. With a straight face he declared 'this case should be 9-0.' Of course I agreed, but acknowledged that his 9-0 was probably different from mine...
I have never expressed more confidence than to say that I am cautiously optimistic that the individual mandate will be found unconstitutional. Though my optimism has increased since I attended the hearings last week...
Now that the liberal professoriate etc. has spent two years convincing themselves that they should never lose, their reaction to the possibility of actually losing has been explosive and nasty. While taking the usual shots at those of us that have led the efforts to protect the U.S. Constitution from this federal health care law, they have also turned viciously on their own.
Bearing the brunt of the assault is Solicitor General Verilli (SG) - the lawyer for the federal government tasked with defending the constitutionality of the individual mandate. He was definitely outshone by Paul Clement for the states, but frankly, anyone would be outshone by Paul - he's that good.
But the SG's main problem was not Paul Clement, it was his own case. Remember what I said above about winning a poker hand starting with a 2, 3, 4, 5, and 7? That was what the SG was called on to do in this case.
How bad is it? Mother Jones is one of the most reliable far left blogs out there, and here's what they had to say:
"Solicitor General Donald B. Verrilli Jr. should be grateful to the Supreme Court for refusing to allow cameras in the courtroom, because his defense of Obamacare on Tuesday may go down as one of the most spectacular flameouts in the history of the court."
And after all of their teeth gnashing and rending of garments, they concluded: "If the law is upheld, it will be in spite of Verrilli's performance, not because of it."
Now, as a general matter, I am not one to defend my opponent's lawyer, but the obstinate refusal of the insular left to accept that they had a bad case from the beginning, i.e., that the law was wholly unprecedented and likely unconstitutional, is almost breathtaking. Their cruel willingness to rhetorically put the SG's head on a post just to avoid blaming those that actually brought America this unconstitutional monstrosity (and to avoid admitting that they were wrong themselves), is sad and pathetic.
It is still not clear whether the mandate will be found unconstitutional or not, but this chapter in the left's vicious cannibalism should serve as a lesson to America of how close-minded and insular the left really is. And more than that, it's a lesson of just how committed to government control of everything they really are, as they simply won't allow that any other course is even worth contemplating.
Marbury vs. Madison and this Case
For those of you that don't remember Marbury vs. Madison, don't worry, you didn't miss something in the newspaper, Marbury was decided in 1803. It is considered the landmark case in the history of the Supreme Court, as it is the case that definitively established the concept of what's called "judicial review." Judicial review simply means that the courts are the final decider of what the law is, including the Constitution.
The Supreme Court declaring itself as the final arbiter of the Constitution was a controversial position at the time - even though it was a unanimous decision (4-0). It has historically been seen as a very clever maneuver by Chief Justice Marshall to solidify the Court's position and power.
The reason I bring it up now, is that it has occurred to me that a certain degree of the Court's own power is at stake in the health care case.
Well, I'll tell you...
If the Court rules that the mandate is constitutional, then Congress in particular -- and to a lesser extent, the Office of the President -- will suddenly be a lot more powerful in our constitutional system. Put differently, the balance of power between the three branches of our federal government will noticeably shift.
Congress will gain the most power among the three branches, the Presidency will gain, too, but not nearly as much as the Congress. Those gains in authority will come entirely at the expense of the Courts.
Well, I'll tell you that, too...
If Congress' power under the Commerce Clause is so broad that Congress (with the concurrence of the president) can order citizens into commerce in order to regulate those citizens, that would represent a massive increase in the recognized breadth of the Commerce Clause, and therefore of the power of Congress and the president.
Remember Justice Kennedy's first question to the SG on Tuesday: "Can you order people into commerce in order to regulate them?" For the mandate to be constitutional, the answer to that question would have to be 'yes.' And reflecting a different comment by Justice Kennedy, this would represent a fundamental shift in the relationship between the government and the citizens - massively increasing the power of government at the expense of citizens' liberty.
So, one consequence of a finding by the Supreme Court that the mandate is constitutional will be that the Court will have much less need to review federal legislation in order to judge such legislation's constitutionality. The reason for this is that the legal theory supporting a finding that the mandate is constitutional is so sweeping, that there won't be nearly as many questions in the future as to whether or not a particular piece of federal legislation is constitutional or not, as so much of it will fit comfortably within the new outer limits of the Commerce Clause.
Put another way, if the mandate is constitutional, the outer boundary of Congress' power would be so broad, that it would be ridiculously simple to draft laws that fit easily within that boundary, even though such laws might appear to be very far-reaching by any previous constitutional standards. And because so much more federal power would fit within the new outer boundary of the Commerce Clause, there just wouldn't be as much cause for the Court to review federal laws for constitutionality as in the past, as it would almost be hard to draft a law that was a close call by the potential 'new' outer limit of commerce clause power.
Those are my health care litigation thoughts for the day!
Wednesday, April 04, 2012
VIRGINIA ATTORNEY GENERAL KEN CUCCINELLI with more thoughts on ObamaCare and the Supreme Court: