Obamacare Oral Arguments Don't Appear to be Going Well for the Regime
March 27, 2012
RUSH: The Supreme Court, what's going on? It doesn't appear -- and you really can't make any judgments, final judgments, on this. But the oral arguments do not appear to be going well for the regime. The regime's solicitor general is being laughed at on occasion, and the justices are poking holes in many regime arguments up there. But, as I say, oral arguments, you never know what indicator they are. It's like trying to read a jury. But still, it's entertaining and it's instructive and we'll pass it all on to you.
RUSH: Oral arguments at the Supreme Court are taking place today, and we have bits and blurbs flowing in here as circumstances warrant. For example, "Supreme Court Justice Anthony Kennedy said the US government has a 'very heavy burden of justification' to show where the Constitution authorizes the Congress to change the relation of individuals to the government." He means they got a really tough burden of proof here. He's the fifth justice. This is the justice everybody thinks is going to end up deciding this, and this is why, by the way, oral arguments really don't give you much of an indication. Because justices are political, too, and they can say things in oral arguments to deflect attention to any number of reasons here.
But he happens to be right and so I think it's important to point it out. "Supreme Court Justice Anthony Kennedy said the US government," the regime, Obama, "has a 'very heavy burden of justification' to show where the Constitution authorizes the Congress to change the relation of individuals to the government," meaning the mandate. "His comments came as the high court tackled the central issue in the challenge to the Obama administration’s health-care law -- whether Congress could require individuals to carry health insurance or pay a penalty." They even got into discussing burial insurance today. One of the justices asked the regime: "Okay, if you're gonna demand everybody have health insurance, what about burial insurance?"
Because everybody's gonna die, except the left who eat all the right foods and don't go to all the wrong places. Everybody's gonna die, and they're gonna have to do buried. Why not require burial insurance? "Weeeeell," the regime said, "that's a wholly different situation, Mr. Justice! A wholly different situation. We're not transferring costs in that circumstance. There aren't a bunch of burial freeloaders." There aren't? How do we know this? There have to be a bunch of burial freeloaders out there. I think that was Alito At any rate, "Solicitor General Donald Verrilli, in defending the law, argued that Congress was regulating the health-care market in which people were already participating, rather than breaking new ground by forcing them to buy a product.
"Justice Kennedy asked what limits, if any, there would be to government powers under his argument. Justices Ruth Bader Ginsburg and Stephen Breyer weighed in repeatedly to further Verrilli’s argument, and to counter skeptical remarks made by Justices Antonin Scalia and Samuel Alito." Well, we knew that, that Breyer and Sotomayor and Kagan are all in the tank for this. So it's purely political process going on up here, folks, on the left side of this. It's purely political. Let's go to the audio sound bites to illustrate this. This is Morning Joe today on MSNBC. F. Chuck Todd, NBC News political director and White House correspondent, was the guest, along with Eugene Robinson of the Washington Post and the cohost Mika Brzezinski.
They all had this exchange about the Supreme Court hearing oral arguments about the constitutionality of the health care law.
TODD: The question is: Do they look at public opinion or think about the impact they would have on the political sys-tem?
SCARBOROUGH: I guarantee you, Anthony Kennedy, more than anybody else -- and he's gonna be deciding this case. He looks at the politics.
TODD: Imagine if they followed public opinion in the previous cases having to do with the civil rights.
TODD: I mean... I mean... Right?
ROBINSON: Brown v. Board of Education!
BRZEZINSKI: You say that they actually look at polls which they're not --
BRZEZINSKI: You know, they're really supposed to try and focus on the law. How can they not --
BRZEZINSKI: -- in the heat of this?
RUSH: "How can they not focus...?" See, there's Mika Brzezinski asking the basic Civics 101 question: "Well, why can't they just look at the law?" Take a look your leftist justices, Mika. They're not even look at the law here. They're looking at defending Obama. Folks, here's what's at stake. I would be remiss if I didn't remind you of something. This health care law debate at the Supreme Court and everywhere else is about much more than just health care. It's about the Constitution. People ask me all the time, "The Constitution is what it is, Rush. How can you have four justices on the Supreme Court who simply refuse to accept it?" And the answer, though frustrating, is very simple: They don't like it and they don't want to change it, and this is how.
They know they're not gonna have a giant constitutional convention. They know that they're not gonna get a chance to start from scratch and rewrite the whole thing.
So they do it piecemeal as opportunities present themselves such as this. They look at the Constitution as a "living, breathing, flexible document" written by a bunch of racists and wealthy, entitled people who set things up for their own benefit and to heck with anybody else. They believe the Constitution is a "charter of negative liberties." In their mind, what that means is the Constitution's problem, and the deficiencies in the Constitution, are that nowhere does it describe what government can do. The Constitution is a document which specifically and purposely limits the federal government.
That's why was written, to prevent what's happening now, in fact: Massive takeover of the federal government by political forces acting outside the Constitution or extra-constitutionally. So the four justices on the Supreme Court look at the Constitution, and they frown and they cringe. They don't like it. That's why they ignore it. This is an opportunity to both ignore it and change it. And it's not just with Supreme Court justices. It's all liberal judges throughout federal court system -- at the appellate level, the circuit level, you name it -- and that's what's going on here. That's why the four liberal justices aren't gonna budge. In a sane world, if the Constitution were nothing more than interpret here by these judges... Like I said yesterday: It really is disturbing that the nation as founded has in the balance here on the votes of one or two Americans, which is where we are in this health care debate.
The nation as founded, its existence under the Constitution, hinges on the votes of one or two justices of the Supreme Court. If this were a sane world, and if the law really did matter -- if the Constitution really took precedence as it's supposed to -- this case would be thrown out. They wouldn't even accept it. If they did accept it, it would be 7-2 or 8-1, to overthrow Obamacare, to overturn it, to declare it unconstitutional. And I don't say that politically, contrary to the opinion of some of you in the audience. I say that purely constitutionally, purely legally. There really isn't a constitutional argument here. What we're going through is a power grab by Democrat forces on the left to fundamentally rewrite the Constitution case by case. This case happens to be the biggest opportunity they have ever had to take over the federal government with them in charge and that's what this is ultimately all about.
RUSH: Here's the burial insurance argument. "A report on the hearings," this is filed by the Wall Street Journal reporter, "as to the hypothetical of forcing Americans to buy burial insurance..." Now, remember, if Obamacare is declared constitutional, burial insurance and a thousand other things like it are next. This was at 10:08 this morning: "Back inside the court, Justice Samuel Alito has focused on the comparison with burial services, asking [the government's lawyer] Mr. Verrilli to justify not requiring funeral insurance since everybody will also eventually have to be buried or cremated.
"Mr. Verrilli has responded that it's 'completely different' because people don't shift huge uncompensated burial costs to others -- they're met by family members or the government." So it's not a legal issue, according to Mr. Verrilli. We have to examine if family members kick in. Why do family members kick in? Why should they? Why is it okay? Why does that negate anything when they kick in for burial insurance? Why couldn't families kick in for health insurance or medical treatment? Why does the government have to be the one to do it? Why can't families kick in in that situation? I think here, folks, to note factual differences in an analogous situation is to state the obvious here. To duck the legal question using factual differences is telling.
Apparently there was no legal argument for burial insurance, but wait! A Supreme Court justice jumps in to help. "Justice Stephen Breyer, however, has taken the government's argument further. He's said that a requirement burial coverage could be constitutional if there were a uniform, national system of funerals with large employers and government programs such as Medicare and Medicaid playing large roles." Now, the government lawyer didn’t want to go there. "'I do think we are advancing a narrower' argument..." Here you have a liberal justice, the whole concept of burial insurance comes up, and one of the justices says, "Oh, wait a minute now! If you're gonna require everybody have health insurance, why do you not require them to have burial insurance?"
Well, because those things are not cost shifted and families will kick in.
And a liberal justice... And this guy, Breyer, if I may be honest, I've always scratched my head when I listen to this man speak. As a person from a family of really achieved lawyers (my family is primarily lawyers) it's been impressed upon me any whole life the intellect required especially when you get to judge level, justice level. My dad always told me this. Any time a controversial case either was before him that he was going to try as a lawyer or anywhere in the country in the news, he'd always impress upon me the need for incredible people as judges. They really have to be incredible people. They have to become, as do lawyers experts, on everything, if they are to succeed, if they are to excel. I've heard Breyer, for example, when he talks about using foreign law... Believe me, it's nonsensical. I wouldn't be surprised if before this is all over, Breyer or Ginsburg invoke foreign law.
Remember Ginsburg recently was in... Where was she? In South Africa? Somewhere where they were talking about putting together a constitution, and she specifically advised them not to use the US Constitution as a model. It was antiquated. It had discrimination built into it. The US Constitution -- she said to these people, whoever they were -- is really not good for what you want to do here. That's a woman on the Supreme Court here deciding this case. Breyer, I've always scratched my head when I listened to this guy. And I always remember what my father said about needing incredible people as judges (sigh), and this guy doesn't seem to be one. And lookie what happens here. His side's lawyer... I know it sounds strange to say of a Supreme Court justice "his side," but it's true. He's on the government side in this. He's his side's lawyer.
"No, no, no, no. Burial insurance, maybe the remedy," Breyer said, "Mr. Verrilli is to have the government in charge of all burials."
RUSH: Now, back to this Supreme Court business with Justice Breyer. This is authoritarianism on parade. This is statism on parade. This is totalitarianism on parade. This is how these people think. (paraphrased exchange) The government lawyer is asked, "Well, how come you're not gonna require burial insurance if you're gonna require health insurance?" and he says, "Well, completely different 'cause people don't shift huge uncompensated burial costs to others. They are met by family members or the government." So Breyer steps in here and says, "Well, why don't we just have the government run all funerals, and that way it would end the problem." And the government lawyer says, "No, no, don't say that! That's not what we want up here!"
"For God's sake, be quiet," is what he's saying in his mind. Mr. Verrilli, the government lawyer, did not want to go there. You talk about showing your hand? Justice Breyer basically says, "Well, look, have the government be in charge of all funerals. Make every funeral uniform. The government sets up a standard, and that's how it will be done, and then there's no problem. Congress can compel us to buy insurance of any kind. And then we can tell Congress how they're gonna run it," and this stuff is pervasive. I have to tell you something. I wasn't gonna mention this 'cause I try to stay focused here. But it now fits. I read a lot of sports. You know I love football.
I love the National Football League, and it's a very active off-season. And there's a big controversy in the league going on right now over bounties that were paid by the New Orleans Saints defensive coordinator to players to take other players (opposing players) out of the game. And the commissioner has come down hard on the coach, the defensive coordinator, the general manager. People have been suspended for eight weeks up to indefinitely. The head coach a full year. And so the sports media is writing about all of this. The league meetings are going on. The National Football League owners are all right here. They're all here in Palm Beach this week for the NFL owners meetings.
And one sportswriter suggested a national commission to be in charge drug violations, concussions, virtually all things that the league is in charge of. The National Football League is a self-contained business. The member clubs are franchises in this business. They set up rules amongst themselves. They govern themselves according to rules that they all agree to. And now here comes somebody suggesting that the federal government be in charge of some of these things! It rolled right off the guy's typewriter. There wasn't even any compunction about it, that the solution to every problem is, "Have the federal government do it!" Burial insurance problem? Fine. Have the government do it. We'll make it uniform and then everything's cool.
You have problems with concussions or drug abuse and so forth or whatever it is in the NFL? Put the government in charge! Put an independent commission in charge of it so that the league cannot be held to any bias. Just amazing. Folks, we are surrounded. I don't attribute any particular political motive to the sportswriter. It is just the way he thinks, just way a lot of people think. I don't believe there's anything ulterior. I don't think it even occurs to him that that's none of the government's business. To him and to so many other people, the government's the final arbiter of everything. The government's good and just. They never do anything wrong, they never make any mistakes. They're the ultimate final authority, and that's the way these four liberal justices on the Supreme Court are looking at this Obamacare case.
They are the final authority.
Well, it turns out that they are. They are gonna be the final authority, and we're here where it's now going to depend on the court. We have four committed liberal votes to grant constitutionality to Obamacare. The other five votes, four of them are conservative and then the swing vote is Anthony Kennedy. At least as it's all drawn up. And the press is making a beeline for all five of these non-liberal judges, pressuring them in one way or the other to agree with the four liberals, and therefore get a 5-4 decision. So we're down here now to the votes of one or two justices of the US Supreme Court on whether or not essentially the Constitution's gonna be ripped up and thrown away. And that's what's happening here. That's really what's at stake. This is about much more than health care and medical treatment.
This is about the Constitution. This whole issue is the greatest opportunity that the left in this country has had to realize their generations-long dream of the federal government controlling everything. Now, here's more on Breyer from the oral arguments. "Justice Breyer says he doesn't want to get into a discussion on whether the legislation 'is a good bill or not'" here in the oral arguments. He doesn't? He doesn't want to get into a discussion on whether Obamacare is a good bill or not, during oral arguments? Once again, Justice Breyer speaks, and I, El Rushbo, scratch my head. "He sends clear signals he believe the insurance mandate is allowed under the Commerce Clause.
"He also offers a hypothetical in which the US is facing the rapid spread of a disease. Surely the government could require that citizens get vaccinated, he said." So if a national disease is spreading rapidly and we got a pandemic or an epidemic, whatever you want to say, surely, says Justice Breyer, the government could require that citizens get vaccinated. Well, does that requirement include them buying it? Does that requirement include them being fined if they don't buy the vaccine? But you see how easy this is for these people? The solution to everything is government!
And, in fact, an analogy the guy wants to make to try to be persuasive is: Let the federal government do it! When the federal government does it, it's magic, and it always works. And it's the simplest way, uniform treatment for everybody, blah, blah, blah, blah, blah. And this, folks, is what we're up against. And I don't know how this is gonna turn out. I'm looking at experts who are looking at outcome either way it goes, and people are making a persuasive case here that it's not helpful to Obama no matter how this thing turns out. I respectfully disagree. If this thing is declared constitutional, I don't care what kind of reelection problem it gives him. This is worth him losing a second term in his mind.
To get this thing declared unconstitutional, that's mission accomplished. That's, "Head to Hawaii and play golf the rest of your life," or wherever he's gonna go. The idea that there's a political problem or losing circumstance for Obama if this thing is declared constitutional? This the biggest party the left will ever have thrown. This is the kind of achievement that you do retire after! But there are people who think, "Well, the American people are so opposed to this that it'd be the end of him. Obama be certainly be defeated." Yeah, maybe so. But then what are we left with? Then we're left with whoever the Republican president is or whatever happens in congressional elections. They then are gonna have to find a way to repeal this.
If there's a will to do that.
If the Supreme Court comes out and declares this constitutional.
I don't know. Let me ask you. What do you think the mind-set of most Republicans in Washington is gonna be? Let's set up a scenario here. Hypothetical, of course. Obamacare is declared constitutional. The American people, in vast numbers oppose this, and Obama loses. Hypothetically. Republicans win the White House, hold the House, and maybe win the Senate. At that point, do you think -- after the court has declared this constitutional -- that there are enough Republicans who, as the first order of business, will start doing what they can to repeal parts of this? I don't know, because a Supreme Court decision is the biggest cover a legislator can get. "Well, the court says it's constitutional! There's nothing we can do about it." That would be hard work. It's gonna be hard work no matter what repealing this, taking it apart shred by shred.
So I don't buy this notion that Obama loses politically if this is declared constitutional.
I don't know.
That's not something I'm hoping for, let's just put it that way.
That's not a preferred outcome.