Will The King of Swing Dance the Mandate

It is generally agreed that Tuesday's hearing before the Supreme Court was a disaster for ObamaCare. Solicitor General Donald B. Verrilli Jr. turned in a dreadful performance by nearly everyone's standard, including Mother Jones. He was stumbling, repetitive, talked in jargon most of the time, and had to be handed nearly every argument he could use by the four liberal justices.

It is appropriate to wonder why such a distinguished lawyer seemed to be so inept. Rand Simberg at PJ Media has suggestion: cocooning. Verrilli, like most people in the Administration and most Democrats in Congress, never talks to anyone who doesn't take it for granted that ObamaCare is constitutional and that any constitutional objection are just silly. For that reason, he was not prepared to offer the one single thing that a defense of the insurance mandate seems to desperately need: a limiting principle.

If you are going to say that Congress has the power to compel citizens to purchase health insurance then you have to go on to say one of two things. You might say that Congress has the power to do pretty much anything it wants so long as it's not explicitly prohibited in the Constitution. I suspect that that is what the Administration believes and what the four liberal Justices believe. Justice Breyer said the following, helping out General Verrilli:

I would have thought that your answer [to the question] can the government, in fact, require you to buy cell phones or buy burials that, if we propose comparable situations, if we have, for example, a uniform United States system of paying for every burial such as Medicare Burial, Medicaid Burial, Ship Burial, ERISA Burial and Emergency Burial beside the side of the road, and Congress wanted to rationalize that system, wouldn't the answer be: Yes, of course, they could.

And the same with the computers, or the same with the cell phones, if you're driving by the side of the highway and there is a federal emergency service, just as you say you have to buy certain mufflers for your car that don't hurt the environment, you could. I mean, see, doesn't it depend on the situation?

So Congress could require me to purchase burial insurance and a cell phone and cell phone plan designed by the Homeland Security Administration. I suppose they could legally require me to carry the cell phone when I go to take a whiz in case I fall and can't get up.

Is there any limit to the share of my paycheck or the hours in my day that Congress can confiscate? I don't think that Breyer thinks there is. That is certainly not how the founders viewed the Constitution. If it becomes the explicit pro-ObamaCare position, it is almost sure to lose on the Court and in the court of public opinion.

The other thing you could say is that there is a limiting principle, but that the mandate is on the safe side of that limit. It is not enough to say that health care is unique. That's like saying you only get married for the first time once. Health care will be unique until the next thing that Congress wants to require us to do. You need to show why health care is unique in a way that is consistent with the principle of limited government.

There is some chance that Chief Justice Roberts will vote with the liberal justices on the grounds of legislative deference. I have no good idea how to game that possibility. Barring that, the case will turn on whether Justice Kennedy decides to try to save the mandate. It is pretty clear that, if he does that, he will have to find some limiting principle that was not offered to him by General Verrilli or the liberal justices.

I don't know what Kennedy will do, but Avik Roy at Forbes makes a very plausible argument that the King of Swing will vote to strike down the mandate. Here is the oft quoted gem from Kennedy early in the day.

The reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don't have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that's generally the rule. And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.

That looks like a pretty solid argument against the mandate. On the other hand, Kennedy later said this:

I think it's true that if most questions in life are matters of degree, in the insurance and health care world…the young person who is uninsured is uniquely, proximately, very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That's my concern in this case.

That looks like he is open to some kind of limiting principle that will save the mandate. Here is what Roy says:

Does Kennedy actually buy the argument that health care is constitutionally unique? The likely answer is no. If Kennedy was really concerned about this problem, it's much more likely that he would have brought it up early on, and raised it both with the Obama Administration's lawyer, Verrilli, and the mandate's opponents, represented by Paul Clement and Michael Carvin. He did not. But when it comes to the Supreme Court's swing vote, we can never be sure.

We're all reading judicial tea leaves here. This seer sees a five to four vote against the mandate. The stakes are rather high. Are the powers of Congress limited by a general sphere of individual liberty apart from the explicit prohibitions in the Constitution? Is there, in the words of the Court, some general right, however limited, to be left alone? No more fundamental question has faced the Court in my lifetime.

Comments

[Donald Pay]

What I was struck by in the oral arguments was the seeming ignorance of Scalia. At least I got the feeling the "liberal" justices and Kennedy were taking their jobs seriously. Even Alito and Roberts seemed to know a little bit about what was going on. Scalia, though, was out in the ozone layer. He was particularly out of touch, seemingly disdainful that he might have to read the bill he was going to have to rule on. It was quite obvious that he didn't bother to read it before oral argument, nor had he bothered to read much of the briefs. His "questions" were ignorant of fact, and he spouted talking points straight from Fox News.

[Stan Gibilisco]

To me, the greatest calamity in all this business is the way everybody talks about the world's most important court judges as "liberal" or "conservative."

I always thought that the Supreme Court of the United States was supposed to rise and remain above politics. If it ever did so, it evidently does so no longer.

[Bill Fleming]

Everything you are arguing is moot point, KB. It was probably fun to write, but that's about it. If you don't want to buy health insurance, don't. You will instead be charged a penalty by the IRS.

Call it a tax if it makes you feel better.

Then the government will have some cash to pick up your tab after they find you at the latrine via a taxpayer funded search. They'll helecopter you in to an emergency room, and you get some adequate looking after on the government nickel.

If you don't make it, the people will bury you.

And if by then, you haven't paid the fine for refusing to pay your way in the health care system, they'll wipe it off the books.

No worries, KB. You're free to be as much of an irresponsible flake as you choose to be.

This is America, you know!

[Bill Fleming]

Helicopter... sorry.

[Bill Fleming]

The point is, we already have a default form of Universal Health Care in the US. Problem is, it is the most expensive, least intentional, purely reactionary form of it imaginable. A lot of Democrats were upset with SHS for voting against the Health Care Bill, but in my opinion for the wrong reasons. Her reason was fairly sound... it was a giveaway to the Health Insurance industry. I share her concern in that. What should have happened instead was that the Democrats introduce and pass an Extended Medicare bill... single payer, universal health. It didn't happen, and that is the fault of the Democrats, imho. We had the shot. We should have gone for all the marbles.

[A.I.]

Here is the irony: Our current laws (perfectly constitutional or at least facing no court challenge) force hospitals to treat those who can't pay for their care. The hospitals pass those costs along to those who can pay because they have insurance. And those with insurance ended up paying more because of this cost shifting. So the court is saying it is fine to "mandate" those with insurance must also pay for those without. But, they question whether the government can mandate those who will need and will use medical help should be "mandated" to pay for their own treatment by buying their own insurance.

Thus if the court decides against the individual mandate, they will have reenforced an individual "right" for those who don't buy insurance to mooch off the rest of us. Sure sounds like a solid conservative principle to me.

[Stan Gibilisco]

If Congress had passed single-payer (aka "Kucinich-care"), would the Supreme Court be hearing the case right now? (I honestly don't know.)

Actually, I agree with the radical liberals on this one. Obamacare is a mess, and should never have been passed. They should have gone for Kucinich-care instead.

Sooner or later the American people will wake up on this one, methinks. I suppose it will be later -- umpty-nine gazillion and one dead bodies later, where that one is your baby sister.

Free enterprise is great, "the market" is great, when applied to systems for which it can work. It does not work, in my opinion, for medical care.

[lynn]

OK, who is going to pay for Obamacare? First was to cost $900 billion (in Obama's and Pelosi's and Reid's minds in order to keep it under a trillion). Once the CBO got the correct facts, it now will cost supposedly $1.7 trillion, about double. And then after new facts just discovered, is up to $2.6 trillion. And I heard $82 trillion after ten years. I think you could take all the wealth of this nation and you couldn't afford this monstrosity. Yes, medical care does need to be addressed, but this unread bill is unconstitutional and so illegal. And does the above poster actually think the Supreme Court should have to read thru 2700 pages before rendering an opinion when the legislators didn't and admittedly couldn't?

[jamz]

Liberalism is a mental disorder. Those who suffer from it lack the understanding of the heap of rubble that this disorder has left in its wake. The historical facts have been laid as far back to ancient Grease to the USSR and the current western Europe. The United States of America is currently under a serious out-brake of this mental disorder and thats why I think the liberals want this health care mandate. Because they want to share their disease and make sure everyone is infected with or by this plague and suffer from liberalism.

[jamz]

sorry, Greece, not Grease, like my wifes cook'n.

[Ken Blanchard]

Jamz: I don't think it is helpful to say that "Liberalism is a mental disorder." It is possible that it suffers from internal contradictions and that it is historically dependent on a view of human nature that is no longer sustainable. However, its proponents are quite sane and now and then they have something important to tell us.

[larry kurtz]

vox populi, yer welcome, Doc.

[jamz]

"In case you need a book to tell you what you already know, Dr. Lyle Rossiter, Jr., M.D., wrote a book about modern liberalism's irrationality being the product of psychopathology: a massive transference neurosis acted out in the world's political arenas, with devastating effects on the institutions of liberty:

"So extravagant are the patterns of thinking, emoting, behaving and relating that characterize the liberal mind that its relentless protests and demands become understandable only as disorders of the psyche." The Liberal Mind reveals the madness of the modern liberal for what it is: a massive transference neurosis acted out in the world's political arenas, with devastating effects on the institutions of liberty.

This makes complete sense and explains the Liberal thinking and behavior that defies any other explanation."

"Liberals clinically mad, concludes top psychiatrist
Eminent doctor makes case leftist ideology is a mental disorder
WND

WASHINGTON – Just when liberals thought it was safe to start identifying themselves as such, an acclaimed, veteran psychiatrist is making the case that the ideology motivating them is actually a mental disorder.

“Based on strikingly irrational beliefs and emotions, modern liberals relentlessly undermine the most important principles on which our freedoms were founded,” says Dr. Lyle Rossiter, author of the new book, “The Liberal Mind: The Psychological Causes of Political Madness.” “Like spoiled, angry children, they rebel against the normal responsibilities of adulthood and demand that a parental government meet their needs from cradle to grave.”

While political activists on the other side of the spectrum have made similar observations, Rossiter boasts professional credentials and a life virtually free of activism and links to “the vast right-wing conspiracy.”

For more than 35 years he has diagnosed and treated more than 1,500 patients as a board-certified clinical psychiatrist and examined more than 2,700 civil and criminal cases as a board-certified forensic psychiatrist. He received his medical and psychiatric training at the University of Chicago.

Rossiter says the kind of liberalism being displayed by both Barack Obama and his Democratic primary opponent Hillary Clinton can only be understood as a psychological disorder.

“A social scientist who understands human nature will not dismiss the vital roles of free choice, voluntary cooperation and moral integrity – as liberals do,” he says. “A political leader who understands human nature will not ignore individual differences in talent, drive, personal appeal and work ethic, and then try to impose economic and social equality on the population – as liberals do. And a legislator who understands human nature will not create an environment of rules which over-regulates and over-taxes the nation’s citizens, corrupts their character and reduces them to wards of the state – as liberals do.”

Dr. Rossiter says the liberal agenda preys on weakness and feelings of inferiority in the population by:

* creating and reinforcing perceptions of victimization;
* satisfying infantile claims to entitlement, indulgence and compensation;
* augmenting primitive feelings of envy;
* rejecting the sovereignty of the individual, subordinating him to the will of the government.

“The roots of liberalism – and its associated madness – can be clearly identified by understanding how children develop from infancy to adulthood and how distorted development produces the irrational beliefs of the liberal mind,” he says. “When the modern liberal mind whines about imaginary victims, rages against imaginary villains and seeks above all else to run the lives of persons competent to run their own lives, the neurosis of the liberal mind becomes painfully obvious.”

[larry kurtz]

you found another earth hater to worship at your blog, Ken: how novel.

[larry kurtz]

Which are you, Jammer: KKK or JBS?

[tom scott]

hmmm..."Jamz" is Larry under a pseudonym. Clear from the wording of the posts. "Jamz", if I am wrong I apologize.

[Bill Fleming]

"So extravagant are the patterns of thinking, emoting, behaving and relating that characterize the liberal mind that its relentless protests and demands become understandable only as disorders of the psyche." The Liberal Mind reveals the madness of the modern liberal for what it is: a massive transference neurosis acted out in the world's political arenas, with devastating effects on the institutions of liberty.

This makes complete sense and explains the Liberal thinking and behavior that defies any other explanation."
____________________

It doesn't make any sense at all. It is pure psychobabble. Utter jibberish. If what you present here in your first volley is all you think you need to establish your argument, there isn't much sense in reading the rest of your post. I'll try though.

Meanwhile Jamz, you read this, and then let's compare notes:
http://karws.gso.uri.edu/jfk/conspiracy_theory/the_paranoid_mentality/the_paranoid_style.html

[Bill Fleming]

Okay... made it through. It seems to me that Rossiter's claims could as eally be equally directed at the philosophies of the Founding Fathers and Abraham Lincoln. I get "Ayan Rand" out of it more than anything else. Overgeneralized, sensationalized, individualist horse pucky. But then, that's standard fare at the World Net Daily, isn't it?

[Bill Fleming]

There is no more evidence that liberalism is a function of transference than there is that Rossiter's analysis is a function of countertransferrence, a condition not uncommon among psychiatrists who offer pop books without any peer review.

In fact, given his sweeping generalizations and willingness to stereotype and diagnose well over half the world's population as being mentally ill, his countertransferrence becomes highly likely, not to mention a good splash of narcissistic personality disorder. Must be where the Jamster gets it. Reading too many of the wrong newspapers and books. LOL.

[jamz]

believing that somehow that things will get better with the leftest philosophy is outright delusional as history dictates. it has been and always will be a complete failure. one can look back from when Sparta went from Lycurgus to Solon, the leftest communist ideology failed. and all the societies that implemented this ideology has failed since. the problem with the left these days is that they lack the integrity to admit that their ideology is simply communism. and they refuse to simply look to history to see where they want to to take this boat. sheer blindness and complete denial i tell ya.

[jamz]

and that is the dysfunction, disorder. not an illness.

[Bill Fleming]

Oh, I don't know, Jamz. It's worked pretty well, so far. Our Liberal Democracy is the model upon which the entire free world is based. Not sure which type of government you would be advocating, but I invite you to list one free nation that practices it.

[larry kurtz]

http://en.wikipedia.org/wiki/Primitive_communism#Nature_of_primitive_communist_societies

[Bill Fleming]

The flaw in your and Rossiter's reasoning is tht you mistake altruism for selfishness, laziness and a sense of entitlement. This is most likely a psychological projection on your part. A society is just to hanker for the welbeing of all its members.

Here are a few notes from peole who say it better:

The test of the morality of a society is what it does for its children.
~Dietrich Bonhoeffer

A decent provision for the poor is the true test of civilization.
~Samuel Johnson, Boswell: Life of Johnson

The most certain test by which we judge whether a country is really free is the amount of security enjoyed by minorities.~John E. E. Dalberg, Lord Acton, The History of Freedom in Antiquity, [1877].

"...the moral test of government is how that government treats those who are in the dawn of life, the children; those who are in the twilight of life, the elderly; those who are in the shadows of life; the sick, the needy and the handicapped. " ~ Last Speech of Hubert H. Humphrey

"A nation's greatness is measured by how it treats its weakest members." ~ Mahatma Ghandi

"Any society, any nation, is judged on the basis of how it treats its weakest members -- the last, the least, the littlest."
~Cardinal Roger Mahony, In a 1998 letter, Creating a Culture of Life

...and then there's that whole "Sermon on the Mount" thingy...

[Bill Fleming]

The argument that the most talented, driven, best looking and hardest working deserve the greater social priviledge is not an American democratic argument. It is a supremacist, totalitarian, elitist argument.

[jamz]

unless you live in western Europe where the "Liberal Democracy" exist then you must be confused if you're a U.S. citizen. the United States of America a republic that has a steadfast constitution. those who believe the health care mandate is constitutional are confused and have some romantic idea of western Europe. those who believe that the h.c. mandate is unconstitutional have the understanding why the U.S. constitution was written the way it was. so i guess we'll just have to wait to see what our sire, the King Justice Anthony Kennedy will decide for us commoners.

[Bill Fleming]

Now you're just being obtuse, Jamz. Is it out of ignorance? If so, perhaps this will enlighten you:
http://en.wikipedia.org/wiki/Liberal_democracy