Tuesday, March 27, 2012

The Future Looks Dim for Obamacare

Obamacare is probably NOT going to pass and that is a good thing for our Constitution and our freedoms.  This article in "New York News and Features" explains it well.
How Paul Clement Won the Supreme Court's Oral Arguments on Obamacare
Paul Clement has been receiving rave reviews for his performance during the second day of oral arguments over health-care reform before the Supreme Court. (“[T]he best argument I’ve ever heard,” SCOTUSblog Tom Goldstein raved on Twitter). But Clement’s finest moment may have come when he was completely silent.
A little more than two minutes into Solicitor General Donald Verilli’s turn at the bar, Justice Anthony Kennedy interrupted him: “Can you create commerce in order to regulate it?”
Kennedy’s query was an almost verbatim recital of Clement’s own talking point, part of the fundamental argument he has made against the individual mandate. In his brief to the Court, and later during his oral argument, he said Obama’s health-care law “represents an unprecedented effort by Congress to compel individuals to enter commerce in order to better regulate commerce.”
It’s a recasting of the original argument used by opponents of the mandate: that Congress has overstepped its constitutional authority by regulating inactivity rather than activity. As Clement explained to me a few weeks ago, “I wasn’t of the view that that was necessarily the best way to try to explain why this was unprecedented and why this was different, and that it might be more effective to kind of use the idea of basically forcing people to engage in commerce so that you can regulate the commerce.”
The fact that Kennedy — the Justice who many believe to be the swing vote in the health-care case — has apparently decided to view the case through this framework suggests just how effective Clement has been. It points to something else that Clement told me: that for all the sturm and drang surrounding these three days of oral arguments, the health-care case, like every Supreme Court case, will likely be won and lost in the briefs.
“I’m a big believer that oral argument makes a difference, but I’m also a big believer that comparably the briefs make even more of a difference,” Clement explained. “One way I think about it is, you start a case and maybe there’s a degree of skepticism that would generate 100 questions; nobody can answer 100 questions to the satisfaction of a skeptical justice in 30 minutes or whatever. But if you brief it really well and you kind of head off some of that at the pass and then you get it down to the point where even a skeptical justice only has a couple of questions, and you assume they’re really open to persuasion on those couple of questions, you’ve now kind of got it to a margin where the oral argument can make a difference.”
Seen through that lens, Clement has to be feeling pretty good about his experience at the Court earlier today. While he faced tough, bordering-on-hostile questions from the four liberal justices — most notably from Justice Steven Breyer, who seemed to be lecturing more than asking — the two justices who seem most open to persuasion by either side, Kennedy and Chief Justice John Roberts, were far tougher on Verilli. And when they did have questions for Clement, he handled them with aplomb.  (READ THE REST HERE).  

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