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Mar 29 2012

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Obamacare Pleads for its Life

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The Law is the Law...

The deplorable state of civics in America is well documented.

But little did anyone think that people who are central to the most significant Supreme Court case in modern history – the consideration of Obamacare – as well as their enablers in the media, would be so shockingly ignorant of foundational principles, precedents and law of the United States.

You can trace today’s unnerving situation to Nancy Pelosi, who dismissed a question regarding the constitutionality of Obamacare, when the legislation first passed, with a sneering question of her own; “Is that a serious question?”

It is worth noting that Pelosi was Speaker of the House and third in line to the presidency at the time, yet could not fathom that something which Congress had done – particularly something as grand and groundbreaking as de facto nationalized health care – could be subject to Supreme Court review and worse, questionable constitutional muster.

Two years later, and after three days of oral argument before the Supreme Court, it is now patently clear to an astonished progressive commentariat that congressional action does not occur in a post-modern vacuum where ends justify the means.

So tenuous were the constitutional grounds for Obamacare that the Solicitor General, responsible for making the Administration’s argument in favor of the law, was reduced to mumbling incoherence under intense questioning from the Justices. Where the fundamental inability of the government to define the individual mandate clearly as a tax or a penalty brought laughter from the bench and the audience.

Yesterday, in the final day of argument, as the government arguments in favor of Obamacare crumbled, SG Donald Verrilli made an extraordinary plea to the Justices:

“In a very fundamental way, this Medicaid expansion, as well as the provisions we discussed yesterday, secure of the blessings of liberty. And I think that that is important as the Court is considering these issues that that be kept in mind. The — the Congress struggled with the issue of how to deal with this profound problem of 40 million people without health care for many years, and it made a judgment, and its judgment is one that is, I think, in conformity with lots of experts thought, was the best complex of options to handle this problem.

Maybe they were right; maybe they weren’t. But this is something about which the people of the United States can deliberate and they can vote, and if they think it needs to be changed, they can change it. And I would suggest to the Court, with profound respect for the Court’s obligation to ensure that the Federal Government remains a government of enumerated powers, that this is not a case in any of its aspects that calls that into question. That this was a judgment of policy, that democratically accountable branches of this government made by their best lights.

And I would urge this Court to respect that judgment and ask that the Affordable Care Act, in its entirety, be upheld. Thank you.”

So, at the end of the day, the government’s case stands on the argument that the law should be upheld because it was the best that Congress could do, even if the methods to carry out the law are constitutionally suspect? Indeed, that despite all the evidence presented over three days, that the Supreme’s should consider a version of “dont ask, don’t tell” with regard to their core responsibilities?

This was the SCOTUS equivalent of pleading for your life, and it was unseemly.

But it was also useful.

If the nation needed a crystallized highlight of the progressive philosophy that dominates the Obama administration and the intellectual thinking – such as it was – that went into the creation of Obamacare, no better example exists than the three days of examination before the Court.

Virrilli’s final, pitiful plea is actually central to progressive governance.

That Congress knows best. That ends justify any constitutional means. That the Supreme Court should not interfere in cases involving progressive accomplishment.

Above all, that the Constitution is pliable.

It might have been helpful had someone briefed the SG on Marbury v. Madison (1803), the Supreme Court case that established the precedent of judicial review, and made the Judiciary an equal branch with the Executive and Legislative.

That it is not only proper for the Supreme Court to consider constitutional questions on legislative policy that exceeds the enumerated powers, but necessary to the separation of powers in the US government to preserve indivual liberty, no matter how quaint that sounds to progressive ears.

So far removed are the academic, political and media elites from these core principles that the sense of shock and indignation that resulted from the very real possibility that Obamacare could be repealed – in part or in whole – was palpable.

But the reaction of the elites speaks to their ignorance.

In today’s Washington Post, the headline on SCOTUS review included, “federal power could be redefined.”

No, no, no.

Should the Supreme’s strike down Obamacare in part or in whole, it will be an exercise in validating federal power and its limits.

Did all the drive-by media and liberal establishment just skip Government 101 in college?

Wait….don’t answer that…..

Indeed, what makes Verrilli’s closing appeal so lamentable is that the Supreme’s are not ruling on the merits of Obamacare or the the need for comprehensive health care reform in America.

That was and remains a matter for Congress to attend to.

SCOTUS is only ruling on whether the plan that Democrats and the Obama administration have come up with meets constitutional muster.  It is up to Congress and the President to take that decision and craft an alternative that meets any objections that are ultimately raised.

But that is not how progressives see it, nor how they will fight it out over the next three months as the Supremes come to their decision.

Already the code words of the left have been taken out of safe keeping to demonize constitutional reality.

The Court is again, “deeply divided” because of justices on “the right,” seeking to “redefine” federal power, according to the Post.

Slate’s Dahlia Lithwick constructed an argument we will likely hear over and over in the coming weeks when she said, “This case isn’t so much about freedom from government-mandated broccoli or gym’s, it’s about freedom from our obligations to one another…the freedom to ignore the injured and walk away from those in peril.”

So to rule against Obamacare is to unleash a fresh tide of selfishness among America. That the choice is between Obamacare and people dying in the streets.

Beyond preposterous.

But columnist EJ Dionne agreeing with Lithwick, said, “This is what conservative justices will do if they strike down or cripple the health care law. And the court that gave us Bush v Gore and Citizens United will prove conclusively that it see’s no limits on its power, no need to defer to those elected to make our laws.  A Supreme Court that is supposed to give us justice will instead delivery ideology.”

The transparent hypocrisy of Dionne and the legions on the left who will soon make vilifying SCOTUS a full time job is obvious if you simply substitute Roe v. Wade for Obamacare.

A Supreme Court ruling striking down Obamacare is not the end of health care in America.  It is the starting point for health care reform that meets constitutional muster.

For that, we owe a heavy debt to the Justices who stood up for our founding document and the timeless principles it embodies.

Founders 1 – Progressives 0.

 

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