Making the Complex Understandable: Obamacare Arguments at Supreme Court
Mar 26, 2012
RUSH: Six hours of oral arguments before the US Supreme Court began today on Obamacare. It can be somewhat confusing if you do not have me to make the complex understandable. The first thing that happened today was basically an argument, a hearing on whether or not the court even has any say-so in this. This is at the court’s request, and it’s all about the fact of whether or not the mandate could be called a “tax.” Now, the regime is in a precarious position on this no matter how the ruling goes down, and I just got a note that I don’t quite understand. I mean, literally as the theme of the program was playing, this note arrived.
I’m being told that it looks like the Supreme Court will not invoke the whole concept of this being a tax, and therefore hear the arguments. My note is, “Even before the court reaches that subject it must broach the issue of the Anti-Injunction Act. This is a 145-year-old federal tax law which could bar the court from even hearing a challenge to the individual mandate.” Now, I’m told here that it looks like the Supreme Court will not invoke this which means they’ll go ahead and hear it. What is this about? The Heritage Foundation has a great explanation of this today, and the first thing on the agenda was to try to determine whether or not the Obamacare mandate is a tax.
And if it is a tax, then the regime can go ahead and say, “It’s not a mandate. We’re levying a tax on people. We have the authority, and therefore everything’s hunky-dory.” Well, fine and dandy as far as that goes. But if that were to end up being the ruling, then the regime has a challenging political problem, and that is: Obama promising all this time that nobody’s taxes would go up and nobody’s premiums would go up, and here they’ve just argued before the court that it’s a tax and they have every right to levy it. So therefore the Republicans have a built-in campaign issue regarding this. I’m told the court’s not gonna invoke this, but we’ll see.
As I say, I just had that note handed to me and I’m probably remiss in even mentioning that to you until I can confirm it today. So the first order of business was the court determining whether or not the individual mandate qualifies as a tax. And, if it does qualify as a tax, then under the provisions of the aforementioned Tax Anti-Injunction Act, TAIA, the mandate can’t be challenged in court until it’s actually been collected. Meaning, you can’t sue for being taxed before you’ve been taxed. See, if the court had determined that this is a tax, then they would have been saying, “Get out of here, everybody; there’s no case,” and that’s what I’m told that they are not going to invoke.
That would take the merits of the case off the table, and the Heritage Foundation really goes into this at great length here. But as I say, the regime would not win in this case. I think probably on the whole notion of a mandate, they’re on thin ice. I find it fascinating (I’m sure you do, too) that all of the news reporting on this is focusing on whether or not a conservative justice will change his thinking on this. Implicit in that is that the four liberal justices are already etched in stone. They’re not open-minded about anything, and they’re going to vote a certain way. It’s a fait accompli. And it probably is, but it’s fascinating to me that the media has all this focus on the conservatives, and therefore, “Can we change their minds?”
They focus on, “Whether we can pressure them, whether we can force Anthony Kennedy or Scalia or maybe Thomas or Alito or even Chief Justice Roberts to see this the ‘right’ way.” So the arguments are already over for today. The court would have to wait until 2015 to hear this case if they had decided to accept the argument that Obamacare is a tax. The polling data on this, ladies and gentlemen, continues to be bad for the administration. Seventy-two percent of Americans see the individual mandate as unconstitutional, and 72% believe Obamacare will make things worse or won’t help. This is Gallup information. “Americans overwhelmingly believe the individual mandate, as it’s often called, is unconstitutional. The margin is 72% to 20%.
“Even a majority of Democrats believe that that provision is unconstitutional,” USA Today/Gallup found. “Americans are less optimistic that the law will improve their family’s health care situation in the long run; 38% expect the law to make their situation worse compared with 24%, who say that it would make it better.” From the get-go, ever since this law was passed, the polling on this has been overwhelmingly against Obamacare. Overwhelmingly. It’s been in the high fifties to the mid-sixties, and like in this Gallup/USA Today poll it even got up into the low seventies (that was back in February) the number of people who find it unconstitutional and don’t want any part of it. And this should be reassuring in one sense, and that is where the public’s mind is on this.
Now, as we know, we have an administration and a Democrat Party ruling against and governing against the will of the people. In this case a public opinion poll won’t matter to them, even in an election year, so much. But you can take some comfort in the fact that a vast majority of the American people don’t want this, and the numbers of people who find it unconstitutional and therefore undesirable is increasing as information about the law leaks out, and there have been sporadic implementations of the law which are negatively impacting people. And even though the administration likes to say, as they have on a couple of occasions, that somebody in the hospital’s life was saved because of Obamacare, nobody believes that.
It’s too outrageous a claim, especially when it’s made about one or two patients. It’s purely political. And health care to most people, at the end of the day, is not political, and they don’t want it to be. And yet they realize in order to repeal this and roll it back, they’re going to have to be involved in it politically. Now, on CBS This Morning today, former Vermont governor Howard Dean broke with the Democrat Party in terms of how he thinks the Supreme Court will view the law. Charlie Rose asked him if he thought the individual mandate would ultimately be declared unconstitutional, and Howard Dean said, “I actually think that’s what they’re most likely to do before, of course, we’ve heard any arguments.”
He predicted the Supreme Court will declare the individual mandate unconstitutional. So just to review here: Six hours of oral argument today (and it’s already over) deciding: Is the mandate a tax? Now, what you had was the administration’s lawyers and the 26 state challengers opposing the argument from an outside attorney that the 1867 Anti-Injunction Act (which prohibits anyone from challenging a tax in court before it’s been enforced or collected) prevents the court from deciding on health care legality before 2015. They had to do that first. There was some possibility that the court might decide that it was a tax and just punt.
I mean, these guys read the election results, too, and they read the opinion pages. They read the papers.
They’re like everybody else. So when they have a chance to punt, you never know. They might take it. But they didn’t, from what I’m told, in this case. “The National Federation of Independent Business and the 26 states argued that the health care mandate penalty is not a tax, and therefore does not fall under the Anti-Injunction Act. The Justice Department, interestingly, was also going to oppose it, but its argument was much more complex since they are claiming that the mandate is a kind of a tax.” The regime, when you boil it all down here, are really on thin ice. It’s the politics of this that gives them a chance. If this were a straight-up-and-down review of the law, we wouldn’t even be here and the thing wouldn’t even have been signed into law. But of course that’s not where we are.
We’re in a purely political world with the Obama administration and the Democrat Party doing everything they can to expand the size, the scope, the power and the reach of the federal government. So tomorrow the mandate will be argued. “Administration lawyers will defend the individual mandate. They will argue that Congress is well within its rights under the Commerce Clause to compel Americans to buy health insurance.” It’s interesting. Grab audio sound bite 28. We’ve played this for you a couple of times in the past. (Well, actually more than that.) When Obama was a candidate, he opposed the mandate that his Justice Department is now up before the Supreme Court in favor of. He opposed it! This is in 2008, February 21st, Austin, Texas, during a Democrat presidential debate, Obama versus Hillary.
OBAMA 2008: When Senator Clinton says a mandate, it’s not a mandate on government to provide health insurance. It’s a mandate on individuals to purchase it. Massa’tusetts has a mandate right now. They have exempted 20% of the uninsured because they’ve concluded that that 20% can’t afford it. In some cases, there are people who are paying fines and still can’t afford it so now they’re worse off than they were. They don’t have health insurance and they’re paying a fine. (applause) In order for you to force people to get health insurance, you’ve got to have a very harsh, stiff penalty.
RUSH: And he went on to say more. In another sound bite, he defeated his own argument as a candidate. He went on to argue that: Well, if you can force people to buy health insurance, what’s to stop you from forcing them to buy anything else you want? Obama himself made that argument! So we have irony and hypocrisy and politics all wrapped up in this. But that was back when he was opposing Hillary and had to do something to differentiate himself, and also win an election. Even back then! Look, the Democrats know the American people want no part of this, and that doesn’t matter. The fact that the American people want no part of this makes the Democrats and Obama even more firm in their resolve to ram it down our throats. It’s just the way they are. It’s the way they treat us, look at us and act toward us.
RUSH: One correction. There is a health care poll that shows a number under 50% at CBS News, and their headline is this: “47% Disapprove of Obama Health Care Law.” Oh, okay, 47%. It’s not 52%. It’s not the 72% in Gallup or USA Today. It’s 47% in the CBS poll. Well, fine. Okay, well, what’s the number of people that support it, then? See, the headline here is very misleading: “47% Disapprove of Obama Health Care Law.” If you read the story, you find out that only 36% approve it. That’s not their headline, however. Their headline is: “47% Disapprove of Obama Health Care Law.” The American people do not want this — and despite their best efforts, CBS has a poll that once again proves it. But they advertise their poll with the wrong headline.
“Only 36% of those questioned said they support the law either somewhat or strongly.” Now, take away the 47%. Here you have, in an administration house-organ poll from CBS News — after two years the regime has had to sell this thing, two years the media has to sell the thing, two years the Democrat Party has had to sell this thing — only 36% of those questioned in the CBS poll said they support Obama. That’s stunning. With two years to sell this, two years to explain it, and barely more than a third of the American people support it. There is no public sentiment for this law. There’s no public sentiment for national health care in this country, and that includes the brain-dead generation that lives and dies on YouTube and E! Entertainment television and Entertainment Tonight and all this pop culture stuff.
It includes them. In fact, this Generation Y, the young people, they’re the ones that are responsible for killing global warming. They’re the ones not buying into it. I’ve got that in the Stack, too. I’ve always mentioned that when things are going wrong and the country’s trending downward and the fear is up and it looks like everything’s falling apart and cultural rot seems unstoppable, every third or fourth generation, in the midst of something like this, finally says, “You know what? We’re not gonna live this way. We’re not gonna live the way our parents and grandparents have given us.” And they stand up and they simply reject all of this pabulum.
I think we’re at the early stages of that happening in a number of places. Not all, but a number of cultural issues, such as global warming, and I think even this health care bill. Now, Fox News is reporting the Supreme Court has “signaled that Obamacare will not stall over this technicality,” meaning the 1867 Anti-Injunction Act. They could have invoked it and punted this thing to 2015. But the word is officially now that they’re not going to. George Will on Friday had a column about Obamacare, and it’s interesting. He looked at all the amicus briefs, friend of the court briefs, which have been filed, and he focuses on one from the Institute for Justice, a Libertarian public interest law firm.
Their focus is: “The individual mandate is incompatible with centuries of contract law. This is so because a compulsory contract is an oxymoron. The brief, the primary authors of which are [the Institute for Justice]’s Elizabeth Price Foley and Steve Simpson, says Obamacare is the first time Congress has used its power to regulate commerce to produce a law ‘from which there is no escape.’ And ‘coercing commercial transactions’ — compelling individuals to sign contracts with insurance companies — ‘is antithetical to the foundational principle of mutual assent that permeated the common law of contracts at the time of the founding and continues to do so today.’
“In 1799, South Carolina’s highest court held: ‘So cautiously does the law watch over all contracts, that it will not permit any to be binding but such as are made by persons perfectly free, and at full liberty to make or refuse such contracts.'” So therefore we’re looking here at what these people call a “compulsory contract,” which is against the law. You can’t be forced to sign a contract, and that’s what their amicus brief argues: That the mandate is a forced signing of a contract between you and your insurance company. It’s a little bit different play on the whole constitutionality of the mandate. It’s a different way of illustrating it, for example.
RUSH: This Institute for Justice amicus brief before the Supreme Court. It’s interesting to extrapolate what they are arguing here. Basically what we have is a coerced, forced contract, “compulsory contract,” which, as George Will points out, is oxymoronic. There is no such thing as a compulsory contract. If you’re made to sign one, then you don’t really have a contract at all, and that’s an eye-opener into how this regime works. It exposes the whole core of a community organized for collectivist purposes. Coercion and intimidation are required to destroy both individualism and free markets. Individuals will not give up on themselves willingly. Not a majority.
People in the free market are just not gonna lay down and give it away. People like Obama and the Democrats understand this, and they know that they will have to be coerced into giving themselves up, into sacrificing their individuality. They’ll have to be coerced, they’ll have to be forced into abandoning free markets. Just as they are required to keep in place the proven failed policies of all this liberalism in the past, all of these social programs that have caused more problems than they have solved. But when coercion is used to compel free people to enter into contracts it’s a big problem.
But as my buddy Mark Levin has pointed out, that’s precisely how statists operate. Statists dominate private sector businesses until they succumb to intimidation. Regulations follow. Resistance to organized thugs normally would be celebrated in a free society where private property is respected and, in fact, necessary to preserve freedom and liberty. The problem comes with a massive State-Controlled Media who work over time to mask gentle brutalities of those who favor government-controlled everything. Coercion is the only way Obama can get what he wants. Forcing us, mandating us to sign contracts that we otherwise would not sign. It’s a great theory.