RUSH: Many people I know — and many people I don’t know — are now predicting what the Supreme Court is going to do on Obamacare tomorrow. And I haven’t kept a running tally of all the predictions from people I know and people I don’t know in the media and outside the media, but it sure seems like most people think that at a minimum, the mandate’s gone by 5-4, with Roberts writing the majority opinion and Ginsburg writing the dissent. And these people are offering all kinds of reasons for their predictions. One prediction is, “Look, they gave Obama Arizona to set up taking health care away from him.” I don’t know if the court works that way, but that’s what people think.
Another one is this. This is Ed Whelan at National Review. There’s an unwritten rule at the court that justices will read dissents orally from the bench once per term. Dissents. He has found that Ruth “Buzzi” Ginsburg has read more than one dissent this year from this term from the bench, so he’s wondering maybe that rule isn’t hard and fast anymore. But he says he thinks a guy like Scalia will probably be duty-bound and honor-bound to respect that tradition of reading one dissent per term, live, from the court. And since Scalia already read his dissent on Arizona, that it’s gotta be the mandate’s gone, because Scalia would have saved his dissent for the biggie, if there was to be one.
I mean, these predictions are running the gamut. And then, of course, there are predictions predicated on the fact that Obama has already been told and you can tell by his attitude in his public appearances that he’s dejected and mad and ticked off about it, betraying the fact that he’s been told that the vote goes — I’m hearing all this stuff, and more.
Hi, folks, boy. You know who this is, most recognizable voice in American media. That would be mine, Rush Limbaugh, here at the Limbaugh Institute for Advanced Conservative Studies.
All kinds of predictions about the Chief Justice, John Roberts, and how he might vote based on his desire for the court to be perceived in certain ways. For me, I have no clue. I don’t know what to believe of any of these predictions. All I know is that a lot of people are sticking their necks out a long way with this public prediction that the mandate, at a minimum, is gone, and that the vote is going to be 5-4. I haven’t spent a lot of time reading left-wing blogs, but there’s a lot of depression out there, primarily for them because of the way the media is covering this. There was a big story over the weekend in the New York Times, for example, and the focus of that story was to sort of berate the smartest people in the history of the Oval Office for not taking care of the fact that they wrote a health care bill that might have an unconstitutional premise in it. They really did.
See, Clinton’s people used to be the smartest, but now Obama’s people, smartest people that have ever been there. But damn it if they didn’t screw something up. They sat there and they put together a health care bill, and they didn’t stop to think that the mandate might be unconstitutional. They didn’t take care of it. So people are looking at that article and assuming Obama knows, he’s been told in violation of court procedure, ethics, tradition, and all that. And then there are people who say, “No, no, Rush, Rush, let me tell you something, Obama’s been told, and it’s a big win, and he’s just acting disappointed. He’s just acting depressed to set everybody up for a crushing, shocking defeat when Obamacare is upheld on Thursday.” I mean I’m hearing it all.
So I thought what I would do, it’s not very often — ’cause, you know, I am the world’s foremost authority. I ask nobody what they think. I’m not big on interviews ’cause I don’t care what anybody else thinks. That’s why I don’t have guests. Really. Why pussyfoot around that. People have asked me oftentimes, “Why don’t you have guests on your show?” Well, there’s a whole bunch of format programming reasons. One is, everybody else does. There’s no way to be different. But, secondly, I’d rather find out myself and become the expert rather than turn it over to people plugging this and plugging that. You know, behave and conduct a program according to formula. And then I finally one day, in a shocking realization, I admitted to myself, I don’t care what anybody else thinks. (laughing) It’s not gonna change my mind.
It’s work to sit here and ask people questions that I don’t care about. I’m not gonna subject myself to that. That turns this into a job. But I’m gonna make a departure from that. I’m gonna ask you people as you call in today about whatever it is you want to talk about what you think the court’s gonna do tomorrow. So if you’re planning on calling the program at 800-282-2882, be prepared to give a short — and you can say you have no idea. That’s fine, too. You can say you don’t know. You can say what you hope. No, I know what you hope. So don’t give me that. I know what you’re saying. I know what you’re thinking, “What are you asking us for, Rush? You are the master at reading the tea leaves. You even have a tea company now. You don’t even know how the SCOTUS is gonna rule, so how can any of us know?”
That’s not the point. I want to know what your thinking is, what your prediction is. (interruption) Well, are you basing that on oral arguments? Ah, you gotta throw that out. Snerdley’s sending me a note here that says that the wise Latina, Sonia Sotomayor, agreed during oral arguments the mandate was unconstitutional and was doing her best to guide these pathetic government lawyers who had no case to defend through their own oral argument. She’s trying to help ’em out. So you’re predicting 6-3 on the mandate? All right, well, let’s talk, 6-3 on the mandate. Snerdley says 6-3 mandate gone. Whatever the vote is, 6-3, 5-4. Oh, and that’s another thing. These predictions, a lot of people say, “Rush, on a momentous case like this, the chief justice is not going to permit 5-4. It’s got to be at least 6-3 for the reputation of the court to avoid the charges of partisan –” Folks, that is so much bohunk. It’s gonna vote the way it comes out.
Now, Snerdley says 6-3 ’cause he thinks the wise Latina, Sonia Sotomayor, is going to join the wise majority and bump the mandate. If it’s 5-4, 6-3, if the mandate goes, my friends, that’s the primary funding mechanism for Obamacare. Why do you think the mandate is in there? The mandate, if you’ve forgotten, the requirement that we all buy a policy or pay a fine, it’s the way on paper, the way this thing was the submitted to the Congressional Budget Office for scoring, it’s the way it is paid for. The mandate is how the regime kept the so-called costs under a trillion dollars. That’s the cost of the Iraq war; it had to come in cheaper than that. And is how Obama was allowed to say via scoring, talking about the CBO, that it was gonna reduce the deficit and it was gonna lower premiums and all this magic stuff.
The mandate is the brain and the heart of this organism. It’s the primary funding mechanism. If the mandate goes, there’s no way to pay for anything else in this. Not as written. And another question then arises. What are the Republicans gonna do in whatever scenario? Are the Republicans gonna sit around and do nothing if it’s torpedoed? Or are they going to say, you know what, people like insurance for preexisting conditions. We better keep that in there. People like being able to keep their kids who are hundreds of thousands of dollars in debt from school on their policies. I know. This is the problem. I know a couple of conservative parents — just as conservative as you or me — well, maybe not as conservative as I am. They’re a little kookier. Well, they’re much kookier, ’cause I’m not kooky at all. But when it comes to the kids staying on the policy, to hell with conservatism, they want it. This is illustrative of one of the primary problems we’ve got.
When you get down to the bare bones personal of this, ideology goes out the window, big government goes out the window ’cause we’re talking about “my children, my son, my daughter, who can’t find work, and I need my child to stay on my policy.” So all the big government stuff, all the limited government goes out the window with these people. If nothing else is kept, keeping the kid on the policy is a big deal. I’m just mentioning this, because what were the Republicans gonna do? Now, I gotta call from Speaker Boehner last Friday. I mean, he’s calling a lot of people. Yeah, he called me first, Snerdley, yes, yes, but he’s calling a lot of people, and he was telling us what the Republican plan is. And it was repeal, repeal, repeal, regardless what happens. The mandate’s thrown out, repeal the rest of it. If the whole thing is upheld, repeal it. If the whole thing’s deemed unconstitutional, repeal that. (laughing)
He made it clear that “repeal” and not “repeal and replace” but “repeal” was gonna be the focal point for the House Republicans. So a lot here on the line. And then you realize the election is in four-and-a-half months. So if the mandate’s thrown out, if the whole thing’s torpedoed — and the mandate being thrown out, being the primary funding mechanism, there really isn’t a whole lot of left. If that happens, then it becomes a campaign issue for the next four months and Obama is running around out there saying four white guys and an Uncle Tom, four rich white guys, Uncle Tom, just took your health care away. I was the first one to give it to you in a hundred years, they just took it away, they still have theirs. These four white guys and an Uncle Tom took your health care. That will become a campaign platform plank for them.
If it’s upheld, then it becomes a campaign thing for the Republicans and for Romney. And then the election in November will have further ramifications on the future of this particular piece of legislation, Obamacare. So tomorrow is really just the first day of a big mess. But it’s the kind of mess that we want. It’s the kind of mess that we asked for. It’s the kind of mess that has to happen if we are gonna get rid of this and try to bring some common-sense reforms. Now, see, Snerdley talked about oral arguments. And there are people on both sides, “Oral arguments? You can’t read anything into that.” Other people say, “Oh, yes, you can.” I got court watchers out there who tell me oral arguments do indicate the way justices gonna vote. Well, Kennedy gave himself leeway to vote any way he wants. The early Kennedy in oral arguments, no doubt totally opposed. But then later on when somebody came up with a compromise idea where it was said that certain aspects could be left in, Kennedy was open to that, too.
So oral arguments where Justice Kennedy are concerned don’t tell us anything. ‘Cause he left himself wide latitude to maneuver and negotiate. Now, as far as the wise Latina, Sotomayor, she was pretty rigid. I mean she was in a way kind of mocking [Donald] “Virility,” the solicitor general, the government lawyer who was pathetic, but he didn’t have a case to defend. Nobody woulda looked good. Perry Mason woulda looked like an idiot trying to defend Obamacare before the Supreme Court.
RUSH: Don in Lake Ronkonkoma in New York. Great to have you on the program, sir.
CALLER: Hey, good morning, Rush. Sitting on the edge of my seat waiting for the Supreme Court decision dittos to you.
RUSH: Thank you, sir. What do you think they’re gonna do?
CALLER: The one thing that has me concerned, Rush, is one of the issues that the Supreme Court justices are gonna decide will be at that anti-injunction act will prohibit states and other parties from challenging the individual mandate. And in the aftermath of the Arizona decision, a little Tom Daschle lingo, I’m a little concerned.
RUSH: What do you mean, the anti-injunction act will prohibit states from challenging the — if they throw the mandate out, they’re throwing it out for everybody, not just the 26 states that filed suit.
CALLER: Well, I understand that there were four issues they were gonna decide regarding Obamacare, according to the Heritage Foundation.
RUSH: Okay, I know, but the anti-injunction, I’m not following you on the anti-injunction act will prohibit states and other states from challenging the mandate.
CALLER: Oh, they’re saying if the individual mandate is thrown out, then it’s all a moot point then.
RUSH: If the individual mandate’s ruled unconstitutional, it’s unconstitutional for everybody.
RUSH: For every state.
CALLER: Okay. That was one of the issues, and I was just concerned about that.
RUSH: The anti-injunction act, all it says is that you cannot sue on tax legislation. It doesn’t apply if there’s no new tax. And if they throw out, if they determine that the mandate’s unconstitutional, then it’s unconstitutional. It’s not just these 26 states that filed suit. The other 31 states would not have the mandate. These 26 states sued on behalf of the whole country and if the mandate goes, it goes. It wouldn’t even apply. So my question to you, what do you think they’re gonna do? Do you think the mandate’s gone?
CALLER: I think the mandate will be gone, 6-3. I’m going with Bo Snerdley.
RUSH: All right, 6-3. I’m telling you, you got nothing to worry about. The anti-injunction act will not even apply because there’s no tax, and it’s not a tax anyway. That’s the whole point. It’s a mandate that people go out and buy. So you’re home free if you’re right. They can’t replicate what they did in Arizona. Well, I forget who I’m talking about.
RUSH: Look, I don’t want to mislead our previous caller on the Anti-Injunction Act. There are two of them, and the Tax Anti-Injunction Act is what we were talking about, which has been discussed because the mandate could be claimed to be a tax. In fact, they tried to say that it was a tax, this requirement to buy health insurance or a fine if you don’t, was a tax that they do have the power to levy. It’s one of the arguments that they made. There is a more general Anti-Injunction Act he might have been talking about. That law prohibits federal courts from issuing injunctions against state courts. It’s complicated, but I’m not sure how it would apply here.
This thing, regardless how they rule tomorrow, folks, I’m telling you right now. I know that if the ruling comes down and if Obamacare is upheld, it’s gonna take the air out of a lot of people’s sails. A lot of people are gonna be depressed. That on top of the Arizona ruling, I expect a lot of people will just chuck it, to hell with it, can’t fight these guys, what the hell. But that’s not the case. There will be an election in November about this, however they rule. That’s the point. There is going to be an election in November over health care regardless the ruling. Whatever the ruling is, you cannot punt. I will not permit it. I will allow 20 minutes of depression, and that’s it. After that you gotta buck it back up.
And, yes, I will probably join you, but I’m telling you, I have not joined the chorus in predicting because I don’t know. I’ve read too much and listened to too much. I’ve heard all the theories. I’ve heard all the rationale, and it all adds up to nobody else knows, either. I’ve even heard the rationale that Obama knows, that he’s been tipped off. That’s why he’s depressed. I’ve heard people say he’s been tipped off that he won, he’s only acting depressed so that everybody expects that it’s gonna be overturned and then when it isn’t, we’re really gonna be depressed because they worked so hard. All of these theories, I’ve heard it. Everybody’s going reverse psychology squared. Getting to the point where you can’t keep up with all of it. And then the theory that, well, you know, Roberts gave Obama Arizona because they knew that they were gonna cream him on health care and I don’t know that the court thinks that way. And I don’t know about cutting a deal in Arizona. The one statue in Arizona that mattered was eight to nothing. It was unanimous. There wasn’t any deal cut on it. The stop and check business.
Now, Obama, within minutes, had Big Sis, Janet Napolitano, tell Arizona, “Hey, by the way, drop dead, you know what? We’re not helping out here at all,” and people think he was tipped off because knew that, was able to implement this policy within literally minutes of the ruling, which is leading people to think he was tipped off about that, the Arizona ruling. So however it goes, you’re still gonna end up… let’s say this, I’m gonna make a prediction to you. Let’s say that the consensus, as best I can determine, there is a consensus that the mandate’s gone. If there is a consensus among all the punditocracy and the wise men and the smart people, if there is a general belief that the mandate will be found unconstitutional. Again, I’m just gonna remind you, if that’s the case, the mandate is the funding mechanism for this. I don’t know how you just take the mandate out and still have Obamacare, because there’s no way to pay for it.
The mandate, in the scoring that they sent to the Congressional Budget Office, is the primary way that Obamacare’s paid for. So if that goes, it’s all up in the air. But if, folks, if the decision tomorrow is that the mandate’s unconstitutional, you’re gonna celebrate, all right, you’re gonna be renewed, faith in the institution of Supreme Court, the country, but then it isn’t gonna be long before you’re gonna get mad and depressed because then Obama’s gonna start campaigning, four white guys and an Uncle Tom took away your health care and that’s gonna tick you off. And then the media is gonna run with this. If the mandate’s thrown out, the media’s gonna have stories, it’s no big deal, they expected this. You know how it’s gonna go.
You’re not gonna see anywhere in the media it reflected that you or we have had a big victory. They’ve already worked on how they’re gonna spin this to a win for Obama. I’m just trying to give you a little heads-up here on this. So that’s why I say, the Anti-Injunction Act that the previous caller might have been talking about is complicated. And it might end up being a factor. I don’t know, but the media’s already saying, and this is why the pundits are assuming that Obama knows, has been tipped off that he’s lost the mandate ’cause the media’s already saying that a loss for Obama will help him in the campaign. And it will inspire the Democrat base. Have you heard that one? Folks, the Democrat base is not fired up. Why do you think Obama is doing all this fundraising? The Democrat base is not fired up.
And let me ask you, turn this around. If tomorrow the mandate and all of Obamacare is found to be constitutional, is that gonna fire you up? Or is it gonna depress you? Is it gonna make you more determined than ever to work hard and get rid of this guy in November, get Romney in there so we can overturn this, or are you gonna be depressed, are you gonna say, the hell with all of this? My guess is that a number of you are going to do the latter. And then after a while you’ll get yourself back in gear and get revved up, but if this thing is found to be constitutional… my reason for asking is, if it’s found to be unconstitutional, I’m telling you, the Democrat base is going to be hysterical, depressed, suicidal. And the media saying it’s gonna rally the Democrat base, save their president, save their health care and all that.
They’re just talking to themselves. They’re trying to spin this as best they can because even they believe that the mandate is gone. They keep saying that a loss for Obama will help him in the elections, but the opposite’s probably far more true. Obamacare being upheld will, in the end, galvanize the Tea Party like nothing before, after they’ve gotten mad and depressed for a while. Intrade has the mandate going down now 74.1%. That’s where you can go online and bet the outcome.
RUSH: Here’s Dave in Chama, New Mexico. Great to have you on the program, sir. Hello.
CALLER: Hello, Mr. Limbaugh. You know this nonsense about the decision from the Supreme Court coming down —
RUSH: What’s nonsense about it? Whoa, whoa, whoa, whoa, whoa, whoa, whoa. What do you mean nonsense?
CALLER: I’ve lost respect and any kind of courtesy for the Supreme Court, especially what they did Monday, come out, there’s four decisions that they made, all of them were according to our decisions that they should have made the federal government enforce, but they didn’t. All they did was come down with one decision that Arizona has to enforce, but the government won’t. I don’t really care how they come down. I depend on the fourth form of government, the people of this country, getting rid of this commissar, Obama and his czars.
RUSH: Getting rid of Obamacare will be part of that, so it does matter what they do tomorrow. It really does.
RUSH: Here’s Sharon in Fort Madison, Iowa. Great to have you on the program, Sharon. Hi.
CALLER: Hey, Rush, how are you?
RUSH: Very good. Thank you.
CALLER: Doesn’t the health care law have a nonseverability clause in it?
RUSH: Uh, severability. Severability. Come on, brain, I’m having a mental block. I’m trying to think how they argued it. No, wait a minute. It doesn’t. Remember, they left it out. They forgot to put it in, where the court can’t separate. Anyway, what is your question about it, Sharon?
CALLER: Right. So it says you can’t sever it. You can’t sever the individual mandate, right?
CALLER: Correctly it should stand or fall. We should not even be talking about the option of severing the individual mandate because of it explicitly it can’t be, so why are they even talking about it?
RUSH: Well, because, if you recall during oral arguments, Scalia said in jest, but he was also mocking the government lawyer, “What do you want us to do? Do you want to go line by line? Do you want us to write this bill?” And the implication was that the court didn’t want any part of that, but that they would approve this part and throw that part out, keep that part, but they left the severability clause out of it. Some people say it was accidentally, some people say it was intentional so that the court would have to throw out whole thing. The theory was, again among the smart people, in quotes, “the smart people,” that the Democrats left severability out because they were rolling the dice that the court would no way throw whole thing out.
No court would ever treat a president that way. No court would ever say that his whole bill is unconstitutional, that that separation of powers would prevent him from doing that. Other arguments say that they just accidentally forgot about it. Severability is normally in major pieces of legislation, which, folks, what that means is if a portion of a piece of legislation is ruled unconstitutional, the rest can stand. But if they don’t put that in there, this is Sharon’s point, if they don’t put the severability clause in it, it means that one part of it goes, it all goes, and that’s your question, right, what are we talking about here?
CALLER: Exactly. You know, do we have a written Constitution? Do we have a written law that is going to stand or fall? And again, obviously, it should fall. But if they uphold parts of it it’s an activist court, you know, ignoring the law and the Constitution again.
RUSH: Yeah. I know. Well, see, that’s the answer to the question. Even though there’s no severability in there, the court could decide to keep certain things and throw out the mandate. I, again, in the real world, the mandate is what pays for this bill. If that goes, there’s no funding mechanism, no primary funding mechanism.
CALLER: Can I ask you one more question?
CALLER: What do you think true conservative activists or Tea Party Patriots will do if the law is upheld, even parts of it?
RUSH: I think they’ll get depressed at first, and they’ll think of just chucking all of this and protecting themselves the best they can from government, their private lives. And after a while, they’ll get fired up more than they’ve ever been to get rid of as many Democrats as they can.
CALLER: Oh, absolutely. But I think on an individual level, when it comes to filing taxes next year, do you have any insight, advice into that? Because isn’t there the abortion surcharge in there? Will this take effect next spring when people file their taxes?
RUSH: What I would say about that, and I’m not saying this in complete jest. If President Obama can choose which laws he wants to obey and not. If President Obama can simply tell Arizona to go to hell after the court’s ruled eight to nothing in favor of the stop and check law, if Obama can say, screw you, you can stop ’em all you want, we’re not helping you, you’re on your own and we’re gonna sue your ass, then why do we have to pay taxes?
CALLER: Yeah. I think there’s not going to be enough IRS agents to track down everyone who will refuse to participate in the abortion surcharge or fine or however you want to call it.
RUSH: Yeah. Well, believe me, when you’re talking Tea Party people, you’re talking people that are intimately informed on this and are aware of that abortion surcharge. But that’s why I’m cautioning people today, Sharon, that whatever the ruling is tomorrow is by no means over, and if the court upholds the whole thing, there’s gonna be an election in November that will further decide this.
RUSH: I want to go back to the severability thing. Do you remember the name Roger Vinson, federal judge, I believe in Pensacola. Regardless, he’s up there in the Gulf somewhere. Back in January of 2011, federal judge Roger Vinson ruled that the individual mandate provision violated the Constitution by regulating economic inactivity. Meaning if Congress can force you to buy something, they can also regulate what you don’t buy. He said you can’t do that. He said the mandate violated the Constitution by regulating economic inactivity, and then Roger Vinson, the federal judge, said, “As the mandate is not severable,” he ruled the entire statute was unconstitutional.
Roger Vinson was one of the first federal judges to rule on this, and he ruled the whole thing was unconstitutional because there was no severability clause, meaning you couldn’t separate the mandate from other aspects of the bill. The only ruling we’ve had on whether the mandate is severable has said that it is not. Vinson is a judge, US District Court, Northern Florida, which is Pensacola. Now, other federal judges have had entirely different rulings, different opinions, which is why this thing’s ended up at the Supreme Court. But, his ruling was specifically on the fact that there was no severability clause in there. It’s what our caller Sharon was pointing out. It is odd that nobody’s talking about that. I would throw that in, including myself in that. It is odd that I, El Rushbo, forgot about that. ‘Cause severability, I remember it being discussed in oral arguments.