ObamaCare Arguments, Day Four: The Lashing-Out Phase Begins

Why did the administration's lawyers get their asses so thoroughly kicked by the conservatives challenging the Health Care reform Act?  And why are liberal columnists so stunned by their reversal of fortune?  Could it be - incredibly -  because no one on the left actually sat down and thought their way through the arguments?

The "esteemed" judicial blooger for the Times, Linda Greenhouse:

The constitutional challenge to the law’s requirement for people to buy health insurance — specifically, the argument that the mandate exceeds Congress’s power under the Commerce Clause — is rhetorically powerful but analytically so weak that it dissolves on close inspection. There’s just no there there.

Maybe the court will agree with that assessment, and maybe it won’t. I think it will, by a wide margin...

So I want to unpack the challengers’ Commerce Clause argument for what it is: just words.

Basically just one word, in fact: “unprecedented.”


Turns out Linda was wrong. It was a bit more than one word. But there is no doubt that many liberals took Ms. Greenhouse's "expert" opinion to heart, and found solace in it. Younger lefties might have found greater comfort in the words of Dahlia Lithwick:

So let’s start by setting forth two uncontroversial propositions. The first proposition is that the health care law is constitutional. The second is that the court could strike it down anyway.

The law is a completely valid exercise of Congress’ Commerce Clause power, and all the conservative longing for the good old days of the pre-New Deal courts won’t put us back in those days as if by magic. Nor does it amount to much of an argument...the justices will vote 6-3 or 7-2 to uphold the mandate


Dalia sees the argument through the prism of leftist blinders: There can be no intellectual argument for striking down ObamaCare, because conservatives are stupid, so it must be about turning back the clock to the days of prohibition, racism, and barefoot women...

And now thatt Obamacare's future is officially in doubt, rather than analyze these failures, the Left instead has doubled down on its usual gambit - rage and hate against those whom disagree with their agenda. E.J. Dionne, a perfect example of the genre:

The conservative justices were obsessed with weird hypotheticals....

Liberals should learn from this display that there is no point in catering to today’s hard-line conservatives.

And a court that gave us Bush v. Gore and Citizens United will prove conclusively that it sees no limits on its power, no need to defer to those elected to make our laws. A Supreme Court that is supposed to give us justice will instead deliver ideology.

Legal Insurrection has a compilation of the dark threats against the Court being made by the "tolerant" left...

Hope you didn't soil your panties while writing that, EJ. And if liberals choose to do be introspective about this loss, rather than throwing a temper tantrum, these three quotes will tell you where you went wrong:

Jen Rubin :

What is going on here is the result of inattention and even contempt for the Constitution that has infected what passes for liberal jurisprudence over the past 30 or 40 years...In essence, the left ceased to be interested in research and perfecting arguments that were grounded in the words of documents and the intent of the drafters. They unilaterally disarmed just as conservative jurists and scholars were beefing up, studying historical text, perfecting their analytical skills.

Gail Collins of the New York Times epitomized the problem, and emulates Lithwick and Greenhouse:

I can’t believe this might be overturned. How can this law not be constitutional? The other alternatives are forcing taxpayers to cover the cost of the care in emergency rooms for people who don’t want to pay for their insurance, even if they can, or letting human beings just die on the side of the road. I can’t believe fiscal conservatives think either of those options is a good idea.

Really, I have my hands over my ears. Not listening.

Yeah, that's a good grasp of the argument against Obamacare. Yeah, that's a good analysis of the legal technicalities involved: We want it, so why can't we have it? (note: you thought John Podhoretz was kidding this morning?)

Why were the pundits wrong? Why were Obama's lawyers caught so embarrassingly off guard?

From the 63rd stanza of the ancient Chinese text (whose name can be translated as either "The Way", "The Way of Virtue", "The Way of Power"):


夫輕諾必寡信多易必多難是以聖人猶難之故終無難矣


In English:

He who promises lightly must be lacking in faith,
He who thinks everything easy will end by finding everything difficult.
Therefore the Sage, who regards everything as difficult,
Meets with no difficulties in the end.


Someone tell the president, and the lost-at-sea lefties above...