Barack the Clueless 2

My spirited interlocutors in the comments section of this blog have been defending the President's remarks on judicial review with, well, spirit. Their chief argument has been that the President was pursuing a daemonically clever strategy. How could the Court dare to overturn ObamaCare after he had affixed to such a decision the scarlet letters JA, for judicial activism?

I pointed out that it were not so clever to begin his case with a manifestly ignorant comment about judicial review. Contrary to my esteemed commenters, it isn't just conservatives who took issue with the President's remarks. I quoted Ruth Marcus, and I note here that the Washington Post editors also took the President to task.

It's fair to note that the President walked back his infamous rejection of judicial review the next day. He was asked this question when he addressed the Associated Press:

Mr. President, you said yesterday that it would be unprecedented for a Supreme Court to overturn laws passed by an elected Congress. But that is exactly what the Court has done during its entire existence. If the Court were to overturn individual mandate, what would you do, or propose to do, for the 30 million people who wouldn't have health care after that ruling?

Okay, that wasn't exactly the right question. Mr. Obama addressed the right one:

Well, first of all, let me be very specific. We have not seen a Court overturn a law that was passed by Congress on an economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner. Right? So we're going back to the '30s, pre New Deal.

And the point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it's precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress. And so the burden is on those who would overturn a law like this.

The second paragraph is perfectly reasonable and, I think, correct; except that it wasn't the point he was making before, it is a retraction. Court's should exercise "significant restraint and deference to our duly elected legislature." However, precisely because the President is right about the Court's power to determine what the laws mean, the burden of proof will be judged by the majority of the Court.

The first paragraph, unfortunately, appears just as clueless as the comment he is here retracting. It's nice when the President gets specific. Here is the footnote from Powerline:

Is there any truth to Obama's claim that the Supreme Court hasn't invalidated any statutes that are "economic" and relate to "commerce" since Lochner v. New York, which was in 1905?

Of course not. To name just a few examples a great deal more recent than 1905, the Court ruled unconstitutional provisions of the Sarbanes-Oxley Act that had permitted only "for cause" removal of members of the Public Company Accounting Oversight Board in 2010; the 1990 Mushroom Promotion, Research and Consumer Information Act in 2001 (this case was actually quite similar to Obamacare because the Court held unconstitutional provisions that required mushroom growers to contribute to mushroom promotion programs); provisions of the Patent and Plant Variety Remedy Clarification Act, the Trademark Remedy Clarification Act, and the Copyright Remedy Clarification Act in 1992; the Harbor Maintenance Tax Act in 1998; the Transfer Act which authorized the transfer of operating control of Washington National Airport and Dulles International Airport from the Department of Transportation to the Metropolitan Washington Airports Authority in 1991; and many, many more dating back to 1905.

I don't expect the President to keep all these cases in mind. Surely he could have his staff help him prepare a comment that would not be legally illiterate. The Court has overturned over a hundred laws that were "passed by Congress on an economic issue," since Lochner.

I continue to doubt that the President's remarks on this issue have been clever at all. To the contrary, he and apparently his staff and his administration have been extraordinarily inept at making a case for the constitutionality of the mandate. This isn't because they are stupid or because they are unlearned. The problem is not that they can't understand why anyone would think that ObamaCare is not good law, though they can't. The problem is that they cannot imagine why anyone would object to a good law out of principle.

Comments

[Bill Fleming]

What principle?

[Bill Fleming]

I'm assumining you're taking the position that a person should not have to pay for health care services, and that it would be unconstitutional for Congress and the President to mandate that they do so. Is that correct? Is that the principle?

[lynn]

There are many people who do not pay for health care services at the present time, and there will continue to be many who don't pay for health care services under Obamacare. This law just mandates that certain people pay for their and others health care services. The principle is whether the federal govt has the constitutional authority to force a person to buy a certain product. If this law were to be upheld, it would, as one of the Justices so eloquently stated, it would completely change the relationship of the fed govt to the individual. We live in a country founded on freedom and a small fed govt and separation of powers. Seems the present administration has forgotten all three of these founding principles.

[duggersd]

Lynn:
I agree with your assertion that some people under the monstrosity we call Obamacare will still not purchase health insurance (although it is not health insurance, but health coverage). So can we actually deny care to people who do not purchase this coverage? I submit that if a few people were actually denied this care, the most of the rest would decide maybe they will quit sucking on the national teat and get their coverage.

[Bill Fleming]

Congress has the authority to regulate commerce and to tax, Lynn. You're not arguing that point, are you? And isn't everyone in the nation involved in the health care business? i.e. can you name anyone who hasn't seen a doctor or been to a clinic, hospital, emergency room, pharmacy or other health care delivery service some time in the course of his/her life?

[Bill Fleming]

DuggerSD, one could, with perhaps even more justification than you have here, call what we had before "Obamacare" (not the real name of the act, btw) a monstrosity, in that it placed lifetime caps on coverage, excluded pre-existing conditions, left young children without coverage, etc. etc. But bottom line, what good does it do to just lable things with pejoratives? How does that help us come together and solve the real problem?

[Ken Blanchard]

Bill: no. I am assuming a government of enumerated powers. That is the principle. I think I have laid out most of the arguments in these pages, but I can see you are holding something behind your back, so...

Can Congress compel me to purchase health insurance from a private vendor, and thus make me a partner in a contract that I did not agree to enter, merely on the grounds that my failure to enter would be inconvenient for Congress's legislative ambitions?

[Dave]

Man, I can't wait til they overturn Obamacare! I am SO tired of paying for other people to crash their cars! I'll finally be able to stop paying that ridiculous insurance on my car! That THE STATE can force me into an insurance market when I have NO intention of crashing is just RIDICULOUS!

[Bill Fleming]

I don't think that is the only option the bill offers, is it KB? I don't think you have to buy health insurance if you don't want to. I think you can choose to pay a fine to the IRS instead, isn't that correct?

[A.I.]

Careful with post like those first two Bill, you may cross into jaundiceville. (By the way, if you are there, the little, green people are Smurfs.)

Whether clever or not KB, Obama's remarks certainly have not been original. They were the sincerest form of flattery in that they were barely nuanced imitation of the same "activist court" talking points the Right has been using for years.

The other thing they have in common with much of the Right's rhetoric is, as you continue to take pains to point out, they were not exactly accurate. But, as a political scientist, you should know that factual exactitude is not especially important in political rhetoric--at least so far as swaying opinion is concerned. Thus, I continue to be amazed that you are unable to grasp the notion that no matter how much you and others protest, hardly anyone cares if Obama misspoke, lied or whatever you want to call it. He stuck the court with the potential label of "activist" and the rest is moot--game over, he won.

Welcome though to the tiny, naive little club that thinks facts matter in politics. I'm on your side, I agree and I get it. And as a truth-seeker extraordinaire, you might also turn your attention to things like voter fraud which, while about as prevalent as leprechauns, continues to be cited as justification for Republicans to enact laws that disenfranchise traditional Democratic voting blocks--coincidence I'm sure.

Of course, that's just one of dozens of fact-challenged concepts promoted by the Right to achieve their ends. But just in case you're considering it, no, I will not back that up with a three-page, single-spaced listing--although I'm pretty sure I could.

[duggersd]

Garsh, Bill, I thought the Obamaites were calling the monstrosity called Obamacare Obamacare. http://www.timesunion.com/news/article/SPIN-METER-Now-they-re-all-calling-it-Obamacare-3439858.php If this is his signature "accomplishment", then why run from it? They don't mind calling it Romneycare when talking about MA. I do not see how calling that monstrosity called Obamacare is a pejorative. BTW, I do not necessarily accept those "good things" you mentioned are actually good for health care overall.

[Bill Fleming]

Oh, I don't mind "Obamacare" at all duggerSD. Romneycare either.
I just question why you think they are more "monsterous" than the
system we have now, without either of them.

And of course, I think there are better ways to go. These two are pretty "Republican" in their ideation.
I would prefer a single payer plan. Medicare for everyone.

[A.I.]

Speaking of clueless (actually, shameless prevaricating):

"No fewer than three Romney claims in that one speech merited PolitiFact’s “Pants on Fire” rating: that Obama led “a government takeover of health care,” has been “apologizing for America abroad” and is ending “Medicare as we know it.” Romney’s assertions that Obama “is the only president to ever cut $500 billion from Medicare” and that eliminating Obamacare saves “about $100 billion” were rated false.

That Romney resorts to such gratuitous falsehoods discredits his leadership more than his opponent’s."

From Dana Milbank. The rest is here: http://www.washingtonpost.com/opinions/the-facts-vs-mitt-romney/2012/04/06/gIQAITqjzS_story.html?hpid=z2 For your edification KB, it also mentions Obama "unprecedented" factual lapse--for balance no doubt.

[Ken Blanchard]

A.I.: Let me get this straight. You think that no one cares that the President "hardly anyone cares if Obama misspoke or lied," but they will care about the concept of judicial activism and whether or not the Court majority uses the term consistently. Okay. I have nothing to say in reply to that amazing reasoning.

Even were in sound in this world and position on the space-time continuum, was it really necessary for the President to make a damn fool of himself, twice, in order to pull it off?

[Ken Blanchard]

Dave: I doubt very much whether reasoning with you can accomplish anything, but I am going in. Car insurance requirements are conditions of access. No one is forced to own or operate a car. That provides a limiting principle, the absence of which was a key weakness in the government's case. The Solicitor General never tried to use your silly argument because, weak though his preparation was, we was not appallingly uniformed.

[Ken Blanchard]

Bill: paying a fine is not an "option", it is a penalty for breaking the law. Under the mandate, everyone is legally required to purchase health insurance who can afford to do so.

[Donald Pay]

What I see with the extreme right is an extreme amount of ideological na-naism, but not much deep thinking. KB is one of those playground annoyances that most of us should try our best to ignore. Sometimes, though, it's just fun to watch this pest sputter in fake indignation as we goad the little twit.

Anyway, I've been thinking of the problem faced in the 1990s, when South Dakota Republican Party flunkies tried to set up interstate commerce in body parts and other medical waste, probably even aborted fetuses, because they could make a buck off it. These moral upstanding "people" (they formed corporations to try to hide themselves) never had any problem with taking money from interstate commerce in aborted fetuses.

This got me thinking. Arms and legs severed from the body by medical procedures, various body fluids and tissues, soiled gloves and similar disposed materials become medical or biohazard waste. These arms and legs, tissues, gloves and etc. enter into interstate commerce at the point where a medical waste handler places the severed limbs and etc. into their truck. The cost of hauling away these wastes for disposal are part of your bill.

Those costs, and many others, are contracted for ahead of time, so that before you come in in the ambulence you don't have to contract for those servcies before you are treated.

Any time you enter into a medical setting for any purpose whatsoever some medical waste is generated. It would make no sense for the medical facility to contract a medical waste handler to handle your specific wastes at the time you are carted in. And I'm sure you would appreciate it that the hospital doesn't just hand you your severed leg as you are waking up from surgery and tell you, "Here's your medical waste."

In order to properly handle your waste in an efficient, safe and economic manner, the medical facility must set up that service prior to the point that your waste enters interstate commerce. The cost of establishing this interstate commerce must be handled up front.

That's just modern life. We don't live in the times when the doctor came around to stick leeches on you arms and it cost very little to dig up the leeches. Things have changed. Get into the 21st century and stop pining for the days when childhood mortality was sky high.

[Dave]

So let me try and get this straight. "The State" can force me to buy auto insurance because one must "choose to own" a car or truck. But because I did not choose to have my life or associated health, all bets are off? Except that by breathing eating and drinking each person chooses "to own" a life and the associated health.

Perhaps we could look at this from a different angle.

True or false: "The State" may require a person or business to purchase LIABILITY INSURANCE to protect others from damage or injury.

True or false: The state, taxpayers and hospitals face financial injury when an uninsured person seeks treatment.

True or false: An uninsured person is a financial liability to their community.

True or false: "The State" may require a person or business to purchase LIABILITY INSURANCE to protect others from damage or injury.

[duggersd]

Bill, I refer to this law as a monstrosity because that is exactly what it is. When it came in under $1 trillion, it was a monstrosity. Everybody KNEW it was going to cost way over this. The people who argued it was not going to be that expensive were liars, plain and simple. The only way they could make it appear to be under that magic $1 trillion was to use a dishonest method. They were collecting taxes for two years before implementing the thing. Now we find out it is going to cost almost twice as much as "estimated". In order to get the thing passed, they had to use a special procedure, a budget resolution. The President either lied or was mistaken when he said people would be able to keep what they had. I do not believe he was mistaken. If you said it too, I do not believe you were mistaken either. I believe this law is going to lead us to fewer innovations in the medical field. We also have employers who are less likely to hire because of it. BTW, that is not me saying it. One example: http://edworkforce.house.gov/UploadedFiles/02.22.12_knecht.pdf I can get you more if you need them. But who cares? At least we have it passed. This thing is also going to lead us to death panels. Yeah, you might call it something else, but in the end, there is going to be someone in the government denying care because you are just too old. Even the chief death panelist himself, President Obama told a lady he would just have her mother take a pill rather than have a life-saving procedure done because at 100+, she is just too old. Whether you want to measure this law based upon the size of it or on the damage it is doing to our country, the best word I can think of to call it is a monstrosity.
BTW, Happy Easter, all.