Sen. Ron Johnson (R-WI) spoke with conservative bloggers today in a conference call that had been scheduled in anticipation of today's Obamacare ruling at the Supreme Court.
Senate Republica Leader Mitch McConnell, introducing Sen. Johnson,noted that "repeal and replace with common sense reform" will be at the top of his agenda come January if he is Majority Leader. McConnell reiterated a point he made right after the Court announced its decision, that the Obamacare legislation was passed as a "deception" that it was not a tax. In fact, McConnell said, the healthcare takeover is a "massive tax" that will fall disproportionaely on lower middle-class Americans.
Sen. Johnson -- who is an accountant by profession -- expressed disappointment with the Court's opinion but said that Republicans are "very unified" to move forward to.
Alluding to the holding that Congress did not have Commerce Clause power to pass the Affordable Care Act, Johnson said conservatives came "tantalizingly close." He said the majority "rewrote the law" to uphold it.
Now, the task for Republicans is to paint a picture for voters as to exactly what the health care legislation will do to them as patients, small business owners -- and what it will do the American economy. Costs will increase, innovation will decrease and the country will go bankrupt if the Affordable Care Act is not repealed and replaced, Johnson said.
It is "jaw-dropping how underestimated the costs" of the law are, Johnson said.
He predicted that employers will have a simple deicsion to face: pay $20,000 per family/year for mandatory health insurance or pay a $2,000 fine. Employees, moreover, will then be able to take advantage of $10,000 federal subsidies to get insurance that their employers would have provided pre-Obamacare. The cost to the federal government, when thousands of individuals figure that calculous into their decsion-making, will be more than the federal government can ever shoulder. Employees "in the millions" will choose to be subsidized, Johnson said. "It is a budgetary disaster waiting to happen."
Johnson conceded that it is unlikely that Republicans will pick up enough seats to obtain a filibuster-proof super-majority of 60. He therefore expects that the best possible result from Congress in the short term, now that the law has been re-cast as a tax, is that it could be de-funded with a simple majority through the reconciliation process.
Chief Justice John Roberts has made "clear its not their [the Court's] duty to repair bad laws," Johnson said. The solution now must be a legislative solution, and Johnson said that will require a Republican majority in the Senate and a Republican president.
Showing posts with label SCOTUS. Show all posts
Showing posts with label SCOTUS. Show all posts
Thursday, June 28, 2012
Sen. McConnell Reacts to Obamacare Ruling
Senate Republican Leader Mitch McConnell, who weighed in on amicus briefs as far back as the district court in Florida, issued this statement on the Senate Floor a few minutes ago:
Two and a half years ago, a Democrat president teamed up with a Democrat-led Congress to force a piece of legislation on the American people that they never asked for, and that has turned out to be just as disastrous as many of us predicted.
“Amid economic recession, a spiraling federal debt, and accelerating increases in government health spending, they proposed a bill that has made these problems worse.
“Americans were promised lower health care costs. They’re going up.
“Americans were promised lower premiums. They’re going up.
“Most Americans were promised their taxes wouldn’t change. They’re going up.
“Seniors were promised Medicare would be protected. It was raided to pay for a new entitlement instead.
“Americans were promised it would create jobs. The CBO predicts it will lead to nearly 1 million fewer jobs.
“Americans were promised they could keep their plan if they liked it, yet millions have learned they can’t.
“And the President of the United States himself promised up and down that this bill was not a tax.
“This was one of the Democrats’ top selling points — because they knew it would have never
Two and a half years ago, a Democrat president teamed up with a Democrat-led Congress to force a piece of legislation on the American people that they never asked for, and that has turned out to be just as disastrous as many of us predicted.
“Amid economic recession, a spiraling federal debt, and accelerating increases in government health spending, they proposed a bill that has made these problems worse.
“Americans were promised lower health care costs. They’re going up.
“Americans were promised lower premiums. They’re going up.
“Most Americans were promised their taxes wouldn’t change. They’re going up.
“Seniors were promised Medicare would be protected. It was raided to pay for a new entitlement instead.
“Americans were promised it would create jobs. The CBO predicts it will lead to nearly 1 million fewer jobs.
“Americans were promised they could keep their plan if they liked it, yet millions have learned they can’t.
“And the President of the United States himself promised up and down that this bill was not a tax.
“This was one of the Democrats’ top selling points — because they knew it would have never
Excerpt From Sen. Rand Paul's Brief on "Spending Power"
Sen. Rand Paul's amicus brief in the Obamacare case focused on why the statute was unconsitutional under the Commerce Clause. (Disclosure: I was counsel of record on that brief.) A majority of the court agreed with his reasoning, but upheld it under the so-called Taxing and Spending power. This was the third layer of argument that the Obama administration advanced -- the fall-back to its fall-back.
Though it wasn't the primary focus of Sen. Paul's brief, he did address it briefly, focusing on the Framers' original understanding of the "Spending Power":
So, too, with PPACA, the statute’s proponents lean on the Commerce Clause, the Necessary and Proper Clause and the spending power to form a three-leggedstool to support the Act. None of these legs can support the Act’s constitutionality either in isolation or cobbled together in the regulatory morass that is PPACA.
. . .
The spending power is not a roundabout to evade the Constitution’s federalist plan of limited and enumerated powers. See Richard W. Garnett, The New Federalism, The Spending Power, and Federal Criminal Law, 89 CORNELL L. REV. 1, 24 (2003). Indeed, there is no “Spending Clause” per se, and there is considerable scholarly debate about what constitutional provision empowers Congress to spend. See, e.g., ORIGINALISM: A QUARTER-CENTURY OF DEBATE 253-85 (Steven Calabresi ed., 2007). For most of the first seventy years after the Constitution’s ratification, the spending power was understood to be limited to the enumerated powers, rather than a free-standing power. See John C. Eastman, The Spending Power, in THE HERITAGE GUIDE TO THE CONSTITUTION 95 (Edwin Meese III ed., 2005) (discussing narrow view of spending power leading to vetoes by Presidents Thomas Jefferson, James Madison and James Monroe).PPACA cannot be squared with this original understanding.
Here's Sen. Paul's reaction to today's ruling:
“Just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so. The whole thing remains unconstitutional. While the court may have erroneously come to the conclusion that the law is allowable, it certainly does nothing to make this mandate or government takeover of our health care right,” Sen. Paul said.
“Obamacare is wrong for Americans. It will destroy our health care system. This now means we fight every hour, every day until November to elect a new President and a new Senate to repeal Obamacare,” he continued.
Though it wasn't the primary focus of Sen. Paul's brief, he did address it briefly, focusing on the Framers' original understanding of the "Spending Power":
So, too, with PPACA, the statute’s proponents lean on the Commerce Clause, the Necessary and Proper Clause and the spending power to form a three-leggedstool to support the Act. None of these legs can support the Act’s constitutionality either in isolation or cobbled together in the regulatory morass that is PPACA.
. . .
The spending power is not a roundabout to evade the Constitution’s federalist plan of limited and enumerated powers. See Richard W. Garnett, The New Federalism, The Spending Power, and Federal Criminal Law, 89 CORNELL L. REV. 1, 24 (2003). Indeed, there is no “Spending Clause” per se, and there is considerable scholarly debate about what constitutional provision empowers Congress to spend. See, e.g., ORIGINALISM: A QUARTER-CENTURY OF DEBATE 253-85 (Steven Calabresi ed., 2007). For most of the first seventy years after the Constitution’s ratification, the spending power was understood to be limited to the enumerated powers, rather than a free-standing power. See John C. Eastman, The Spending Power, in THE HERITAGE GUIDE TO THE CONSTITUTION 95 (Edwin Meese III ed., 2005) (discussing narrow view of spending power leading to vetoes by Presidents Thomas Jefferson, James Madison and James Monroe).PPACA cannot be squared with this original understanding.
Here's Sen. Paul's reaction to today's ruling:
“Just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so. The whole thing remains unconstitutional. While the court may have erroneously come to the conclusion that the law is allowable, it certainly does nothing to make this mandate or government takeover of our health care right,” Sen. Paul said.
“Obamacare is wrong for Americans. It will destroy our health care system. This now means we fight every hour, every day until November to elect a new President and a new Senate to repeal Obamacare,” he continued.
Quick Reaction to Obamacare Ruling
The Supreme Court's decision to uphold the constitutionality of Obamacare is on one level very disappointing. The good news is that Chief Justice Roberts -- the swing vote -- voted to uphold it under the taxing power rather than the Commerce Clause or the Necessary and Proper Clause. This is a much narrower basis for the legislation than the Obama administration had advanced all along, until the very end.
Those who believe in limited government should thank God that this monstrosisty was not upheld under the Commerce Clause coupled with the Necessary and Proper Clause.
The majority opinion, at least at first glance, appears rife with inconsistencies and hypocrisy. If the minimum coverage provision is a tax, then why wasn't it barred by the Anti-Injunction Act?
The ruling on Medicaid and the coerscion of the states is similarly illogical. Seven Justices found that it was unconstitutional for Congress to take away existing Medicaid funds from states which refuse to adopt new Obamacare expansions. But instead of holding the statute unconstitutional on that basis, a majority of five for theCourt esseentially rewrote that provision -- Congress may not take away the exisiting Medicaid funds, but may withhold new funds conditioned on new expansions. This, despite the fact that the statute contains no provision for severability.
This is the Court not interpreting the law but redrafting it altogether. It is one thing to construe a statute in the best light to hold it constitutional, it is another to slice it and dice it to make it so, particuarly in the absence of the a severability provision.
More thoughts to come, but that is my initial take.
Those who believe in limited government should thank God that this monstrosisty was not upheld under the Commerce Clause coupled with the Necessary and Proper Clause.
The majority opinion, at least at first glance, appears rife with inconsistencies and hypocrisy. If the minimum coverage provision is a tax, then why wasn't it barred by the Anti-Injunction Act?
The ruling on Medicaid and the coerscion of the states is similarly illogical. Seven Justices found that it was unconstitutional for Congress to take away existing Medicaid funds from states which refuse to adopt new Obamacare expansions. But instead of holding the statute unconstitutional on that basis, a majority of five for theCourt esseentially rewrote that provision -- Congress may not take away the exisiting Medicaid funds, but may withhold new funds conditioned on new expansions. This, despite the fact that the statute contains no provision for severability.
This is the Court not interpreting the law but redrafting it altogether. It is one thing to construe a statute in the best light to hold it constitutional, it is another to slice it and dice it to make it so, particuarly in the absence of the a severability provision.
More thoughts to come, but that is my initial take.
Tuesday, April 3, 2012
McConnell Schools the Con Law Prof
Senate Republican Leader Mitch McConnell expressed the shock many of us felt at President Obama's attempt to intimidate the Supreme Court to uphold Obamacare. The president comported himself more like a thuggish Chicago pol than a former professor of Constitutional Law.
Most bewildering was Obama's rejection of judisicial review, which has been unquestioned since Chief Justice Marshall wrote Marbury v. Madison, two centuries ago.
Obama's warning that the Court ought to defer to Congress because it is an elected branch was particularly rich given that Democrats had to literally bribe their own to secure enough votes for Obamacare. Recall the "Gatorade", the "Cornhusker Kickback", and the "Louisiana Purchase."
This, on top of the fact that few of the members who voted for the bill read the 2,700 pages before voting. Speaker Pelosi boasted they needed to "pass the bill so you can find out what's in it.". The Supreme Court can and should see if this monstrosity violated the Constitution and strike it down if exceeds the enumerated powers of article I.
To hear Obama, one would think that the Court was the product of a junta. To the contrary, these justices, all of them, were appointed by democratically-elected presidents and confirmed by democratically-elected members of the Senate. Thenk God they serve for life, to protect them from the political pressure we saw in the Rose Garden yesterday.
Here is McConnell's statement on the issue.
"Regardless of the Supreme Court’s decision on Obamacare’s unprecedented mandate on the American people, elected leaders have an obligation to protect our system of checks and balances. The President, more than anyone else, has an obligation to uphold the legitimacy of our judicial system. But his remarks on the Court reflect not only an attempt to influence the outcome, but a preview of Democrat attacks to come if they don’t get their way.
“Only someone who would browbeat the Court during the State of the Union, and whose administration stifled speech during the health care debate, would try to intimidate the Court while it's deliberating one of the most consequential cases of our time. This president's attempt to intimidate the Supreme Court falls well beyond distasteful politics; it demonstrates a fundamental lack of respect for our system of checks and balances.”
Most bewildering was Obama's rejection of judisicial review, which has been unquestioned since Chief Justice Marshall wrote Marbury v. Madison, two centuries ago.
Obama's warning that the Court ought to defer to Congress because it is an elected branch was particularly rich given that Democrats had to literally bribe their own to secure enough votes for Obamacare. Recall the "Gatorade", the "Cornhusker Kickback", and the "Louisiana Purchase."
This, on top of the fact that few of the members who voted for the bill read the 2,700 pages before voting. Speaker Pelosi boasted they needed to "pass the bill so you can find out what's in it.". The Supreme Court can and should see if this monstrosity violated the Constitution and strike it down if exceeds the enumerated powers of article I.
To hear Obama, one would think that the Court was the product of a junta. To the contrary, these justices, all of them, were appointed by democratically-elected presidents and confirmed by democratically-elected members of the Senate. Thenk God they serve for life, to protect them from the political pressure we saw in the Rose Garden yesterday.
Here is McConnell's statement on the issue.
"Regardless of the Supreme Court’s decision on Obamacare’s unprecedented mandate on the American people, elected leaders have an obligation to protect our system of checks and balances. The President, more than anyone else, has an obligation to uphold the legitimacy of our judicial system. But his remarks on the Court reflect not only an attempt to influence the outcome, but a preview of Democrat attacks to come if they don’t get their way.
“Only someone who would browbeat the Court during the State of the Union, and whose administration stifled speech during the health care debate, would try to intimidate the Court while it's deliberating one of the most consequential cases of our time. This president's attempt to intimidate the Supreme Court falls well beyond distasteful politics; it demonstrates a fundamental lack of respect for our system of checks and balances.”
Tuesday, March 27, 2012
Today at the High Court, the Mandate Looked Fragile
The atmosphere at the Supreme Court this morning reminded me of the Kentucky Derby, only it took tow hours rather than two minutes. The Justices even drank (water, presumably) out of silver Julep cups!
Everyone was so excited to be there, regardless of which side they favored. The crowd outside was festive - even played the Black Eyed Peas.
Many of those who camped out to get tickets changed into court attire in the Supreme Court restrooms. A few others, including a bunch of Georgetown Law students, looked like they'd slept on the sidewalk but still relished their chance to see history.
There were many Senators, including Senate Republican Leader Mitch McConnell. Sen. John Kerry walked in and took a center seat just before the gavel pounded, the better to make sure we all knew he had arrived.
The caliber of advocacy varied. Paul Clement, for the 26 attorneys general, was outstanding. The Solicitor General, for the Obama administration, had a very rough start. He was visibly nervous and could never provide a limiting principle when pressed by the conservative justices.
After the first hour, it was clear that the individual mandate was in trouble.
Much has been said about Justice Kennedy as the swing vote. His questions and comments today suggested that unless he changes his mind in conference, he will vote to strike down the statute. That is perfectly consistent with his jurisprudence.
Before the argument, I was more worried about Justice Scalia, who takes a broad view of the necessary and proper clause. What a relief, therefore, to see Justice Scalia pounce on the S.G. from the get to.
The liberal justices tried their hardest to help out the government. The effort was neither pretty nor effective.
Justice Thomas asked no questions, but that his his style. He did, at one point when Wickard was mentioned, reach for an amicus brief and start paging through it. Maybe Sen Paul's amicus brief?
Everyone was so excited to be there, regardless of which side they favored. The crowd outside was festive - even played the Black Eyed Peas.
Many of those who camped out to get tickets changed into court attire in the Supreme Court restrooms. A few others, including a bunch of Georgetown Law students, looked like they'd slept on the sidewalk but still relished their chance to see history.
There were many Senators, including Senate Republican Leader Mitch McConnell. Sen. John Kerry walked in and took a center seat just before the gavel pounded, the better to make sure we all knew he had arrived.
The caliber of advocacy varied. Paul Clement, for the 26 attorneys general, was outstanding. The Solicitor General, for the Obama administration, had a very rough start. He was visibly nervous and could never provide a limiting principle when pressed by the conservative justices.
After the first hour, it was clear that the individual mandate was in trouble.
Much has been said about Justice Kennedy as the swing vote. His questions and comments today suggested that unless he changes his mind in conference, he will vote to strike down the statute. That is perfectly consistent with his jurisprudence.
Before the argument, I was more worried about Justice Scalia, who takes a broad view of the necessary and proper clause. What a relief, therefore, to see Justice Scalia pounce on the S.G. from the get to.
The liberal justices tried their hardest to help out the government. The effort was neither pretty nor effective.
Justice Thomas asked no questions, but that his his style. He did, at one point when Wickard was mentioned, reach for an amicus brief and start paging through it. Maybe Sen Paul's amicus brief?
Monday, May 10, 2010
Justice Kagan?
President Barack Obama has nominated Solicitor General Elena Kagan to the U.S. Supreme Court. No doubt her opposition to military recruiters at Harvard Law School as Dean will draw probing questions from Republicans. She was completely wrong about using "Don't Ask, Don't Tell" as a pretext for keeping the military off the Harvard Law School campus.
Nonetheless, we could have done worse. She was a pretty fair dean -- much less ideological than many on the faculty. And she did appoint some outstanding conservatives to the faculty, and that is no small accomplishment at Harvard. Her communication to alums also represented an improvement. Given her recent confirmation as Solicitor General, I think she will be confirmed to the High Court where she will be a solid vote for the left but unable to pull over any votes from the right.
Here's Senate Republican Leader Mitch McConnell's statement on her nomination:
“I congratulate Elena Kagan on her nomination. As we did with Justice Sotomayor last year, Senate Republicans will treat Ms. Kagan fairly. She has been nominated for a lifetime appointment on the nation’s highest court, and we will carefully review her brief litigation experience, as well as her judgment and her career in academia, both as a professor and as an administrator. Fulfilling our duty to advise and consent on a nomination to this office requires a thorough process, not a rush to judgment.
Wednesday, September 2, 2009
Oh, Dear
U.S. Supreme Court Justice John Paul Stevens has hired only one law clerk instead of the usual four clerks allowed to active justices. That almost certainly means that the 89-year old justice has decided to retire -- giving the Obama administration the opportunity to nominate another Wise [fill in the blank of your favorite identity group].
Tuesday, May 26, 2009
The Silver Lining on Sonia
David Frum (via Hot Air) has an interesting take on Judge Sonia Sotomayor's nomination to replace Justice David Souter. According to Frum, Sotomayor may be so personally obnoxious that she will push Justice Anthony Kennedy into voting with the conservatives.
If so, the balance of power on the Court actually tips right, given that Souter voted reliably with the liberals; replacing Souter with a Democratic nominee changes nothing unless there are unintended consequences.
If so, the balance of power on the Court actually tips right, given that Souter voted reliably with the liberals; replacing Souter with a Democratic nominee changes nothing unless there are unintended consequences.
Tuesday, May 12, 2009
Kathleen Sullivan Would Be a Great Justice
Stanford Law professor Kathleen Sullivan has apparently made the short list to replace U.S. Supreme Court Justice David Souter.
Some conservatives are complaining that she should be disqualified because she failed the California bar exam the first time she took it.
Kathleen Sullivan taught me (and Michelle Obama) criminal law at Harvard Law School. It was her first year on the faculty, as I recall. She was a terrific teacher. All Harvard Law professors are bright but not all of them are human. Sullivan is human. She actually cared about her students and wanted us to succeed as lawyers and as people.
Now, this is not to say that I accept the Obama view that judges must be empathetic. Rather, I refuse to see this woman unfairly characterized as unqualified. That she failed the hardest bar exam in the country just shows that she didn't prepare adequately: she needed a lesson in humility when she was younger (who doesn't?).
Anyone who has ever met Sullivan can see in short order that she is highly intelligent. There can be no serious suggestion (as there was with Harriet Myers) that she lacks the intellectual firepower to survive on the Court.
Unlike many members of the Harvard Law faculty at the time, Sullivan was open to divergent points of view -- that is, she didn't shut down conservatives just because she might not agree with us. In fact, Sullivan's teaching method did not particularly disclose much about her politics (though she was a Larry Tribe protege, so we assumed that she was liberal). I do not think she would legislate from the bench; I expect that she'd apply law to facts as impartially as humanly possible.
Sullivan's sexuality neither qualifies her for the Court nor disqualifies her. It is irrelevant.
I probably won't like many of her votes, if she is nominated and confirmed. But conservatives need to remember: our team lost. The best we can hope for is someone who is smart, ethical, fair and has the humiltiy to recognize that the Supreme Court is not a super-legislature for imposing one's personal agenda. Sullivan is all that and more.
Some conservatives are complaining that she should be disqualified because she failed the California bar exam the first time she took it.
Kathleen Sullivan taught me (and Michelle Obama) criminal law at Harvard Law School. It was her first year on the faculty, as I recall. She was a terrific teacher. All Harvard Law professors are bright but not all of them are human. Sullivan is human. She actually cared about her students and wanted us to succeed as lawyers and as people.
Now, this is not to say that I accept the Obama view that judges must be empathetic. Rather, I refuse to see this woman unfairly characterized as unqualified. That she failed the hardest bar exam in the country just shows that she didn't prepare adequately: she needed a lesson in humility when she was younger (who doesn't?).
Anyone who has ever met Sullivan can see in short order that she is highly intelligent. There can be no serious suggestion (as there was with Harriet Myers) that she lacks the intellectual firepower to survive on the Court.
Unlike many members of the Harvard Law faculty at the time, Sullivan was open to divergent points of view -- that is, she didn't shut down conservatives just because she might not agree with us. In fact, Sullivan's teaching method did not particularly disclose much about her politics (though she was a Larry Tribe protege, so we assumed that she was liberal). I do not think she would legislate from the bench; I expect that she'd apply law to facts as impartially as humanly possible.
Sullivan's sexuality neither qualifies her for the Court nor disqualifies her. It is irrelevant.
I probably won't like many of her votes, if she is nominated and confirmed. But conservatives need to remember: our team lost. The best we can hope for is someone who is smart, ethical, fair and has the humiltiy to recognize that the Supreme Court is not a super-legislature for imposing one's personal agenda. Sullivan is all that and more.
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