Health Care

'I'm so glad the Justice Department respects judicial review!'

The nation recently received a lesson in constitutional law from President Barack Obama (who famously taught Con Law at the University of Chicago). As we mentioned yesterday, President Obama said on Monday that striking down the Affordable Care Act, aka Obamacare, would constitute an “unprecedented, extraordinary step,” amounting to “judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law.”

The problem with this lesson: it wasn’t exactly accurate. Those “unelected” federal judges “overturn … duly constituted and passed law[s]” all the time — well, maybe not all the time, but on occasion, when said laws are inconsistent with the U.S. Constitution. It’s neither “unprecedented” nor “extraordinary,” and it doesn’t amount to judicial activism; rather, it’s called judicial review.

One prominent conservative jurist, Judge Jerry E. Smith of the Fifth Circuit, took it upon himself to set the record straight on this matter….

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Bo respects Obama's rhetoric way more than the Supreme Court.

So, I have a dog and sometimes I say things like “do not nudge open the bathroom door and rip up all the toilet paper,” or “you are not allowed to take my socks and hide them under my bed.” When I say these things, she looks at me as if she understands or at least basically respects my authority. But when I leave the bathroom door slightly ajar or I put my socks on the floor, she goes right back to ripping up paper or hiding socks.

You see, she’s a dog. And she’s gonna do what she’s going to do.

In all important respects, the Supreme Court of the United States is indistinguishable from my dog. With lifetime appointments for the justices, the Court is going to do what it wants, when it wants to, and they don’t much care what the “executive” happens to think they should do.

If you don’t want the Court to rip up your toilet paper, don’t leave the door open. Because scolding them about what they should or should not do has little effect, as President Obama is about to find out….

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After a rough week, a near consensus has emerged that Obamacare has a murky future. Liberal pundits are reeling: Dahlia Lithwick is palpably depressed, and Jeffrey Toobin — so recently heard predicting that the ACA would be upheld by an 8-1 majority — is now characterizing the proceedings as a “train wreck for the Obama Administration, and it may also be a plane wreck.” On the other hand, Philip Klein of the avowedly right-wing Washington Examiner encapsulated the opposition’s mood of gleeful triumphalism when he tweeted, “Clement channeled Michael Jordan, Verrilli channeled Scott Norwood.” (But see: Elie’s lonely defense of the Solicitor General.)

Before the arguments commenced, we asked our readers for their opinions and predictions on the case: Will SCOTUS uphold the ACA? Should it? 1,100 of you weighed in.

After the jump, we’ll look at the results of our survey, and sample some representative reader comments. (Here is an example of a non-representative reader comment: “I hope the law is overturned. I am a Christian Scientist and have not been to the doctor in 40 years.”)

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* If Obamacare gets struck down, do you think insurance companies will allow children to remain on their parents’ plans until age 26? My Magic 8-Ball says: “Outlook not so good.” [Wall Street Journal]

* There’s no crying in baseball bankruptcy sales! Which Biglaw firms hit a home run for playing a part in the sale of the LA Dodgers? Dewey & LeBoeuf, Foley & Lardner, and Sullivan & Cromwell. [Am Law Daily]

* “Just because you wear a hoodie does not make you a hoodlum.” But a hoodie will definitely prevent you from being recognized on the House floor. Just ask Congressman Bobby Rush. [New York Post]

* Things you can’t do on an airplane? Have a mid-flight nutty. Pilot Clayton Osbon has been criminally charged for his erratic form of in-flight entertainment, and he faces up to 20 years in prison if convicted. [Reuters]

* Guess who’s allegedly been infringing upon a high-end fashion house’s trademarks to the tune of $124M? Gucci was in court yesterday to accuse Guess of engaging in a massive “knock off” scheme. [Bloomberg]

* A warning label for law school: hey, why not? [Tax Prof Blog]

* What are the laws of the world’s smallest nation? [Ars Technica]

* If we end up with no health care reform, do we have right-wing bloggers to blame? [The Atlantic]

* Speaking of the Obamacare arguments, would a simpler approach have worked for Don Verrilli in front of SCOTUS? [Recess Appointments]

* A new law school on Daytona Beach? Well, I’m sure that school will attract a lot of “talent.” [Daytona Beach News-Journal]

* Professors Miriam Cherry and Paul Secunda ask: Are law review submissions like the Hunger Games? [SSRN]

* Are professors working hard or hardly working? [Adjunct Law Prof Blog]

* Global warming creates jobs? [Slate]

Justice Antonin Scalia

My approach would be to say that if you take the heart out of this statute, the statute’s gone.

– Justice Antonin Scalia, commenting on what might happen to the Patient Protection and Affordable Care Act if the individual mandate were struck down as unconstitutional by the Court.

(How open is Justice Scalia to reviewing the particular provisions of Obamacare to decide which provisions should stand and which should fall? Let’s find out….)

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Isn’t it funny that if you refuse to buy food, the government won’t force you to buy any — broccoli or otherwise? But when you show up at the hospital dying of starvation, the government will give you health care even if you haven’t paid for it.

Sorry, I know it’s foolish for me to inject 21st century policy concerns into Scalia’s 18th century hypothetical.

Obamacare supporters are still licking their wounds from getting smacked around by SCOTUS yesterday. I don’t know why anybody is surprised. You’ve got four staunchly conservative justices and one pretty conservative justice that gets called a “swing vote” because the Court has lurched so far to the right since he was appointed, and you’re going in front of them with a massive use of the interstate commerce power. You think they care that past precedents that they don’t agree with say they should uphold the law? You think they want to give Obama a victory any more than Republicans in Congress wanted to support the Republican approach to health care once Obama adopted it? This was always going to be an uphill battle with this Court.

That’s not Don Verrilli’s fault. People need to stop yelling at this man. No, he wasn’t as witty as Paul Clement. Do we really think that whether or not Anthony Kennedy wants us to have health care will turn on Verrilli’s ability to spit out a one-liner? If liberals want to blame somebody, it’s not Don Verrilli; blame the spineless way Congress and the President abandoned single-payer. That’s why we’re here folks. We sent Verrilli into a conservative lion’s den with a liberal piece of meat hanging around his neck, and now we’re criticizing the way he ran around, screaming for his life. That’s not right.

But anyway, that was yesterday and “reading the tea leaves” from oral arguments takes way more time than looking at the political agendas of each of the justices. Let’s move on to today’s arguments. The Court will consider whether the Affordable Care Act can survive if the Court strikes down the individual mandate part, and whether the expansion of Medicaid coverage amounts to government coercion….

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* Obamacare’s individual mandate may be in jeopardy, and it’s all because of that stupid broccoli debate. No, Scalia, as delicious as it is, not everyone would have to buy broccoli. [New York Times]

* Biglaw firms aren’t going away, but thanks to the recent onslaught of partner defections to small law firms, their high hourly rates might soon be going the way of the dodo. [Corporate Counsel]

* The “good” news: Northwestern Law will be limiting its tuition hike to the rate of inflation. The bad news: next year, it will cost $53,168 to attend. I officially don’t want to live on this planet anymore. [National Law Journal]

* A Littler Mendelson partner is recovering from a stabbing that occurred during a home invasion. On the bright side, at least he’s not a partner at Dewey — that’s a fate worse than being stabbed these days. [Am Law Daily]

* Law school applicants are dropping like flies, but some law schools were able to attract record numbers of students. UVA Law must have some real expertise in recruiting collar poppers. [The Short List / U.S. News]

* “I have a suggestion for you; next time, keep your [expletive] legs closed.” O Canada, that’s the basis of one crazy class action suit, eh? Dudley Do-Right would never treat a female Mountie like that. [Globe and Mail]

Today was the big day: the individual mandate provision of the Affordable Care Act was argued in front of the U.S. Supreme Court. It’s always fun when nine unelected people get to decide whether Congress and the president get to do what the American people elected them to do.

Don’t get me wrong, I’ve been listening to CSPAN 3 take calls from “real” Americans about the constitutionality of health care, and let me tell you: Americans are incredibly stupid. On both sides. Christ on Phonics, I don’t even know if some of these people are able to read. Nine unelected arbiters looking at this is at least as legitimate as millions of freaking idiots having a clap-off to figure out how to administer health coverage for millions of people.

Did I say nine people will decide this issue? That’s not entirely accurate, is it? Aren’t we really talking about one guy?

They’re replaying the audio from today’s arguments on CSPAN 3. Too bad there’s no video… I want to see the gifts of frankincense and myrrh that Solicitor General Don Verrilli and Paul Clement brought for Justice Anthony Kennedy.

But what’s really interesting today is to see whether all these ideologically conservative judges will actually take a conservative judicial approach and show deference to the legislature.

Not that I’m holding my breath….

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Court watchers, it’s on. Today the Supreme Court started hearing arguments on its most politically-charged case since Bush v. Gore. It’s the first time in a generation where the Court might strike down a major piece of national legislation. The Court will hear three days of oral argument on the Affordable Care Act (a.k.a. Obamacare).

This is big time. The entire country is watching.

And on day one, for the opening salvo in the biggest Court battle of the decade, we’re going to start with jurisdiction.

[CLEAR]

Still with me? I know it’s boring, but there’s an interesting political story here as we wait for the Court to get to the “main event” tomorrow….

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