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RUSH: Now the health care situation. The 11th Circuit Court of Appeals struck down the individual mandate, but they left the rest of Obamacare intact. Now, I’m pretty sure that is different from previous rulings in other courts. I’m talking here about the 11th Circuit. So it was thought, it was speculated that the regime would ask for the entire 11-judge court to hear the case rather than just the three-judge panel that decided. And then the regime shocked everybody or I think shocked everybody, “No, no, no, you know what, we’re not even gonna mess around with the 11th anymore, we’re just gonna go straight to SCOTUS,” straight to the Supreme Court. And I said, now, wait just a second here. That tells me that they think that they’re gonna win this at the Supreme Court.


I frankly think, folks, and I have no problem telling you this, I think they’re gonna lose it at the Supreme Court. But that’s just me. I think Obama is gonna get paid back big time for his dissing of the Supreme Court at that State of the Union show. I think his moment is coming. This health care bill when it finally — but I’m way ahead of things here so I don’t even want to go there any further than I have. It’s just an opinion based on no knowledge. I asked a legal friend of mine to help me understand, because there was a story today from The Foundry, which is a Heritage Foundation blog, that we have outmaneuvered the regime, and we have filed an appeal at the Supreme Court based on the 11th Circuit Court of Appeal ruling before the regime has, and this is considered a victory because we have outmaneuvered them and outsmarted them.

I said, “Okay, you need to explain this to me because I, all along, have thought that what the regime wanted to do was slow this down, take as much time at the lower courts as possible while this was implemented, because the more of it’s implemented –” this is what the regime’s counting on, this is a giant entitlement. We’re gonna be giving people things, and once you start giving them things it get really problematic and difficult taking it away from them, i.e., repealing it. So the regime’s strategy has been to slow walk it. This is not slow walking it. This is speeding it up. So what we have here is the regime figuring that the longer Obamacare has to be incrementally implemented before the Supremes ultimately decide the constitutional issue the more it will be a fait accompli and such that the court will find it difficult, if not impossible, to roll it back or to declare it unconstitutional. And the strategy gives the media all that much more time to work on Justice Kennedy.

Justice Kennedy is thought to be swing vote here, and the media thinks that Justice Kennedy can be swayed by promises of puff coverage in a Washington Post Style section piece or what have you, that he, among all the justices, is more susceptible to a ruling based on what he wants to be thought of in the aftermath. I’m just telling you what they think. So they have more time here to work on Justice Kennedy. Moreover, while the legal challenges are important, what needs to happen for Obamacare, really, is a political resolution. And by a political resolution, what I mean is we need a Republican Party committed to repealing it, not waiting for the Supreme Court to do it for them.

Just like we waited on campaign finance reform. We figured, “‘Eh, court will take care of that. We don’t have to do any heavy lifting,” and what happened? The court found it constitutional. And there’s a great concern here that the Republican Party, for all the bluster and for all the talk, they don’t want to do the heavy lifting. As long as it’s gonna go to the Supreme Court, the theory is, “Well, we’ll just back out of this, we’ll avoid any controversy and any negative media coverage.” Remember, the Republican leadership is focused on mainstream media. That’s what they care about. They care about what those people say about them. And they also believe that those are the people that they will have to go through to get their message out.


So we need a committed Republican effort to repeal it. But as long as the Republicans think the courts will take care of it, there isn’t a whole lot of energy in the Republican congressional efforts. And, by the way, let me even add to that the presidential debates. Who have you heard talking about repealing Obamacare? Michele Bachmann. That’s it. And that’s my point. We don’t hear it from Romney. We have heard it from Cain. Romney does say he’ll repeal it, but that’s in the context of trying to defend the Massachusetts law. But I mean in terms of energetically, making it a lead issue, making it a defining issue, Michele Bachmann is it. And Obama knows that time is what helps him.

Bachmann got almost no support in her effort to defund that $105 billion that Pelosi snuck into Obamacare to fund its implementation between now and 2013. This is shortly after the 2010 midterm elections, and Bachmann discovers this $105 billion that Pelosi snuck in there to implement it, and she wants it taken out, and she got nowhere in the party, nowhere with the Republican leadership. They didn’t want to touch it. The reason they don’t want to touch is ’cause the Supreme Court’s out there and it’s eventually gonna go to court anyway, we’ll let the court take the arrows on this.

Now, Obama doesn’t know much about this. I don’t think Obama really knows what’s in this. I don’t think Obama really cares. All he knows is that at the end of the day the government’s gonna run health care and that’s enough for him. What he is is a tactician. When it comes it using to his advantage the enormity of the government’s procedures and delays, that’s what he’s good at. So my question was, “Okay, if they want to slow walk it, then why not ask for the whole 11th court to hear it?” Instead, they say that they’re gonna go straight to the Supreme Court. We supposedly beat them to the punch at the Supreme Court, but we’re still at the Supreme Court, which is not slowing it down. So I was confused. So what I got back from the legal eagle was, “You have to balance a couple of competing interests. Yeah, they want to slow walk it, but they also,” meaning the regime, “they also want to win it.”

Now, the 11th Circuit ruling was not a complete loss. They did lose there, but it was not a complete loss because the 11th Circuit held that the individual mandate was severable, meaning the rest of Obamacare stands, but the mandate’s unconstitutional, so we’ll just pull that out. That was a big win for them. It seems to fly in the face of pretty settled law that a multipart piece of legislation is not severable unless Congress indicates that it intends for the rest of the law to survive if one part is held invalid. Now, normally the mandate here is the foundation of Obamacare. If the mandate is stripped out of it, the rest of the bill should fall apart on its own weight, because the mandate is what funds it, in large part.

But the 11th Circuit said no, the whole law can stay, we’re just gonna pull out the mandate. So the regime says, look, if we go back to the full 11-judge panel for what’s called an en banc review, there’s no guarantee that the whole 11th Circuit would agree with the three judges on severability. They didn’t want to take the chance ’cause the 11th Circuit is usually a pretty good court for us. So they didn’t want to take the chance that they could lose what they won by asking for the full panel of judges in the 11th Circuit court of appeals to hear the case, because this is a big win. I mean it was declared the mandate unconstitutional, but the rest of the law stands. That’s fine with them.


So they weighed everything, and the regime’s Department of Justice decided not to appeal because they could have lost what (for them) is the good part; but they also tried to use all their time to string it out as long as they could because they know that the court’s docket for the next term’s already pretty full, and if they played out the string, maybe the Supreme Court wouldn’t hear the case until 2012 or 2013 term — and it is believed, in our camp, that that’s what they were trying to do: Get this to the court but late so that didn’t get on the next year’s docket. Now, the states know the delay doesn’t help them and that because of the severability ruling, they had their own grounds from an appeal that, as a practical matter, would force the court to look at Obamacare as a whole.

Which is what has happened: Our side has force an appeal at the Supreme Court before the regime has filed theirs. So the bottom line is (this is a long way and probably too much wind here) the action yesterday by our side, in filing our own appeal in advance of the regime’s, could save a year of delay by getting it on the docket at the Supreme Court a year earlier than the regime wanted it. The regime is sitting out there figuring they lose at it 11th but they have a victory in that, “Yeah, we lost the mandate but the rest of the law stands. Okay, fine. That’s cool. We’re not gonna risk losing that by asking the entire 11-judge panel to rule. So we’ll just sit on this and we’ll go to the Supreme Court in a couple months and ask them to hear it,” but we didn’t give ’em enough time.

We have already asked the Supreme Court, so the upshot of this is that we’re trying to speed this up as much as it can be; and by having our own appeal to the court, maybe a year has been shaved off of this — and that’s crucial when talking about the implementation of this. It’s crucial also in terms of the court’s ruling. I don’t care what anybody says: The Supreme Court reads election results, and the Supreme Court knows public opinion polls, and don’t let anybody tell you that that stuff doesn’t matter. It does. I also think there’s a wild card, as I mentioned mere moments ago, and that is Obama’s public disrespect and calling out of the Supreme Court at a State of the Union address a couple years ago.

You don’t see them there. They don’t go up there anymore. You haven’t seen them. I don’t think Chief Justice Roberts has been back. Sam Alito hasn’t been back. I don’t think Clarence Thomas has been back. I don’t think Scalia’s been back. I don’t think we’ve gone up to any more of these State of the Union shows or these joint session things. Yeah, you’ve got Ruth “Buzzi” Ginsburg in there. There’s also the question of Elena Kagan and whether or not she can even survive this in terms of recusal. The point is it’s still a lot to happen here but it’s gotta happen fast because as this gets implemented, it’s tough to rip things out by the roots. You know, you don’t prune weeds, and this health care bill is nothing but a bunch of weeds. You have to get rid of weeds at the root level, and that’s what’s gonna have to happen with this.

BREAK TRANSCRIPT

RUSH: Politico has a story today: “Health Care Premiums Now Cost More Than a New Car.” Not going down, folks. Health care premiums are not going down, and coverage is not getting better. And that’s not going to change until we repeal this.

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