Obamacare advocates blame its legal troubles on everything but flaws in the actual law.
When Obamacare's passage two years ago produced the
constitutional challenges that eventually led to last week's oral
arguments before the Supreme Court, our friends on the left
sneered. They told us the lawsuits were frivolous publicity stunts
doomed to be laughed out of the lower courts and that the justices
of the highest court in the land would never stoop to hear them.
The progressive pundits were wrong, of course, largely because very
few of them actually listened to and comprehended the basic
arguments. Now that the defense of Obamacare has turned out to be a
"train wreck," as CNN's Jeffrey Toobin described it, the usual
suspects are blaming the disaster on the incompetence of the
Solicitor General, the biases of the Court's conservative justices,
and even the diffidence of the liberal justices. Predictably, our
lefty friends are wrong again.
These talking points are not merely incorrect, however. They
offer a revealing glimpse into the cynicism of the left. The first
instinct of the Democrats and their media lickspittles is to
assassinate the character of anyone, including lifelong liberals,
who disagree with them or simply fail to live up to their
unrealistic expectations. This latter crime was committed by
Solicitor General Donald Verrilli last Tuesday, when he had to
stand before the United States Supreme Court and attempt to defend
the individual mandate. Like any honest man forced to make a
fundamentally dishonest argument, he had trouble making the sale.
He stumbled, coughed, and often seemed at a loss for words. And for
this sin, he has been relentlessly criticized and even ridiculed by
people who he probably thought were on his team.
A typically despicable attack was
leveled at Verrilli by the eminent legal scholars at Mother
Jones: "Sounding less like a world-class lawyer and more like
a teenager giving an oral presentation for the first time, Verrilli
delivered a rambling, apprehensive legal defense of liberalism's
biggest domestic accomplishment since the 1960s -- and one that may
well have doubled as its eulogy." Some of the left's Monday morning
quarterbacks actually had the audacity to give him advice on how he
should have argued the case. Yale law professor Akhil Reed Amar,
writing in Slate,
imagines himself standing in Verrilli's shoes and knocking
every question from the Supremes out of the park: "Solicitor
General Donald Verrilli was grilled by the Supreme Court's
conservatives. Here is what he should have said …"
Amar, like most of Verrilli's other progressive critics, has
been warming the bench in academia while the Solicitor General has
actually been playing in the big leagues. Having graduated from
Columbia Law, Verrilli clerked for Supreme Court Justice William
Brennan and went on to become a senior litigator at one of the
country's most prestigious law firms. In government, he has served
as Deputy Counsel to the President, Associate United States Deputy
Attorney General and eventually rose to his current post after it
was vacated by Elena Kagan. Verrilli has also argued seventeen
previous cases before the Supreme Court. So, Obamacare's bad week
in Court was not caused by an inexperienced or incompetent
Solicitor General. It was caused by the law itself. It is an
obviously unconstitutional statute that simply cannot be honestly
defended.
Progressive puling about Obamacare's legal woes has by no means
been limited to cheap shots at Donald Verrilli, of course. There
has also been a plethora of columns from left-leaning pundits who
tell us that the real problem was the Republican-appointed
justices. The New Republic's Jonathan Cohn
writes, "Even now, I have trouble wrapping my mind around what
I saw in the courtroom this week and what a majority of the
justices may be contemplating." Cohn, like so many progressive
journalists, has had trouble "wrapping his mind" around any opinion
concerning Obamacare's constitutionality that doesn't concur with
his own naïve view. Thus, he pronounces himself deeply shocked that
Justice Kennedy could suggest to the government's lawyers that they
had "a heavy burden of justification to show authorization under
the Constitution."
Indeed, Cohn has somehow convinced himself that the burden of
justification is on the Court itself: "[T]he heavy burden in this
case is on the justices threatening to strike down health care
reform. They have not met it." If the reasoning behind this bizarre
assertion seems a little muddled, it is abundantly clear that Cohn
believes a ruling against Obamacare cannot possibly be arrived at
on the merits. It would, by definition, be a purely political
decision made by "a bare partisan majority, with the five
Republican appointees overruling the four Democratic appointees.
The decision would appear nakedly partisan and utterly devoid of
principle. Appearances would not be deceiving." Cohn, like so many
of his progressive comrades, is unable to conceive of a Supreme
Court that isn't as politicized as the editorial staff of
TNR.
This view of the Supreme Court is held by many progressives, no
matter how often people with actual experience of the institution
explain that it simply isn't true. Jennifer Rubin, whose knowledge
of the Court is considerable, has explained it
thus: "[I]n the real world, the court does not act as an arm of
Congress… the court is fundamentally unlike the two political
branches, and the justices, from Sonia Sotomayor to Antonin Scalia,
regard themselves not as political players but as judges." For
evidence supporting Rubin one need look no further than Bush v.
Gore, in which the Court ruled the recount scheme cooked up by
the Democrats who ran Florida in 2000 unconstitutional. That 7-2
decision, in other words, required two liberal justices to rule
against the candidate for whom they had probably voted.
And, speaking of liberal justices, some progressive legal
experts have even blamed the Court's Democrat appointees for
contributing to the "train wreck." Bradley Joondeph of Santa Clara
Law, for example,
writes that "One of the most striking things to me about the
argument is how unstrategic many of the questions were from the
liberals … many of the questions from the Democratic appointees
were not in any way designed to probe matters or elicit answers
that might bring around their more conservative colleagues."
Joondeph excludes Justice Kagan from this criticism, as well he
might. She often sounded as if she were before the Court arguing
the case for the government rather than listening objectively to
both sides. Strangely enough, it sounded almost as if she had
participated in preparing the government's case.
Kagan's assistance didn't help, however. In the end, things
looked pretty grim for Obamacare, and particularly for the
individual mandate. But our progressive friends still can't figure
out why. The problem must be the incompetence of the Solicitor
General, the biases of the conservative justices or the weakness of
the Court's liberals. They seem incapable of grasping that the law
is unsound constitutionally. And it isn't clear that, even if they
did grasp this reality, they would care. Very few of them believe
that an old, yellowing document stashed in the National Archives
building has anything to do with this or any other challenge we
face in the new millennium. And, once again, they are wrong. It is
the leash that restrains an ever-growing and ever-more-ravenous
central government. If Obamacare is permitted to stand, the beast
will get loose and run amok.
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