MOTUS A.D.: Oh What a Tangled Web We Weave

Wednesday, March 28, 2012

Oh What a Tangled Web We Weave

Oh what a tangled web we weave

When first we practice to deceive -- Sir Walter Scott

"A departure from principle in one instance becomes a precedent for a second; that second for a third; and so on, till the bulk of the society is reduced to be mere automatons of misery, to have no sensibilities left but for sin and suffering." --Thomas Jefferson

Do you see what happens when you can no longer call a spade a spade?

Maybe it would have been best if Congress had just called the “penalty” for failure to purchase the government mandated health insurance what Big Guy voted to call it before he voted against calling it that: a tax. Then we wouldn’t be in this pickle.

Butt since taxes are neither popular or palatable, the Dems decided to call the fee for failure to bend to Obama’s will a “penalty” instead of a “tax,” here we are with this sticky Supreme Court wicket. Congress can levy taxes on you to pay for programs, butt apparently they can’t “create a commercial transaction in order to regulate that commerce.” Got that?

At least so far, it looks like a preponderance of the Supremes are leaning towards saying ~~“Stop! In the Name of Love~~” the individual mandate falls outside the purview of Congress’ authority under the Constitution – i.e., it’s unconstitutional. That’s bad.

This is not going to make Big Guy very happy, as you can probably tell from his “coming home from Seoul-searching and hand-holding” wave.

The pearly whites, no longer in sight

Forget about the severability (or lack thereof) of Obamacare: we can’t even get past the enumerated powers clause, as some describe it:

“That’s the point of enumerated powers — to lock them inside an area within which they can act but from which they’re not supposed to escape. Everything outside that sphere is reserved for the people and their state governments.”

So here, as lawyers like to say, is what the Obamacare mandate case appears to turn on: can Congress force someone into commerce in order to regulate that commerce? The answer seems to depend on whether anyone seriously thinks this is what the founding fathers had in mind when they wrote the commerce clause (Article I, Section 8, Clause 3)

I know, I know: the Constitution is old and wrinkly, and in serious need of a facelift anyway. Butt it doesn’t look like that’s a procedure that’s covered by the Constitution. Or Obamacare.

Even Big Guy’s most loyal supporters – who assumed as recently as last weekend that this was a slam-dunk - are beginning to worry that something stupid’s going on here.

"This was a train wreck for the Obama administration," he said. "This law looks like it's going to be struck down. I'm telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong... if I had to bet today I would bet that this court is going to strike down the individual mandate."

I don't know why he had a bad day," he said. "He is a good lawyer, he was a perfectly fine lawyer in the really sort of tangential argument yesterday. He was not ready for the answers for the conservative justices."

Mr. Toobin sounded like he was in shock. And he just couldn’t understand why the government’s lawyer, Mr. Verrilli, seemed unprepared to answer the questions from the “conservative” Justices.

Maybe it was because there is no good way to defend the indefensible? Maybe there is no “limiting principle” that he could articulate?

Butt can Lady M make me buy broccoli? You might not like the answer.