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Clement v Verrilli — 12 Comments

  1. Pundits and academics cannot believe that the deconstructing and de-contextualising they routinely resort to in their respective fields could not be made to sway the Court, or at least five-ninths of it. Of course I may be, even at this low level, over-analyzing. After all, even Justice William Brennan noted that “With five votes around here you can do anything.”

  2. I agree, George Pal. They are unaccustomed to being called on their bull@#$% (w/o the option of running to Fortress Ad Hominem).

    As to the blame of Virelli, it reminds of the leftist lament: Communism has never failed. It has suffered from incompetent leadership: across the board, complete, blanket, incompetent leadership in every single instance. Oh, if only ONE competent leader could emerge to prove the humanity and wisdom of communism.

  3. After reading the entire transcript from the second day, my overriding impression of General Verrilli’s presentation was that of complete incoherence.

  4. I’ve heard this old saying about arguing your case in court:

    If the law is on your side, pound on the law.
    If the facts are on your side, pound on the facts.
    If neither the law or the facts are on your side, pound on the table.

    Verrilli was left to pound on the table…

  5. There is a legal strategy described as “grasping the nettle in the hand,” which seeks to deal directly with the main disqualifying issue first and before anything else. Verrilli would have profited, I think, from that strategy, and his argument from the first acknowledge that the mandate does and will require the rejection of the idea of “enumerated” powers; Don’t try and pussy foot about the issue; graps the nettle directly in the hand. However, such rejection is valid because the idea has become obsolete and the evolutionary process and thought of the Court is leading to that result and demands the rejection of enumerated powers. That way Vermilli could have presented the wanted result as a “brave and courageous” decision to Kennedy because no constitutional Justice would even consider such nonsense as the rejection of the fundamental principle of enumerated powers.

    Progressives only employ the “grasp the nettle in the hand” approach when they are assured of the result. However, by that time, there’s rarely any argument left.

  6. Not intending a threadjack, but…from the article about those 2008 candidates:

    McCain and Palin likely would hew to the values of their conservative base

    McCain voted for Clinton appointees Ginsburg and Breyer

    Beware those who campaign from the right side of their mouths, but govern with their left hands.

  7. Nice post Neo.

    Foxmarks, I am not a great admirer of McCain. In my mind he was an exemplary POW, and that is about it. On the other hand, many admirable Senators have adhered to the principle that barring clear disqualifying issues, the President should have his choices confirmed. Having said that, I too believe that the Bork, and Thomas confirmation debacles changed the game, and McCain, or any other Republican, would be justified in voting against most any nominee who came before them with an ideological bias, or political baggage.

  8. The reason that the cost of health care for the uninsured is forced upon other people is the Emergency Medical Treatment and Active Labor Act, passed in 1986, which requires hospitals to provide emergency medical care regardless of citizenship, legal status or ability to pay, and provides no reimbursement, thus necessitating an increase in the cost of health care for everyone else. Supporters of Obamacare say that this cost-shifting is a problem which it was designed to alleviate.

    Ginsburg says “[W]hat was unique about this is it’s not my choice whether I want to buy a product to keep me healthy, but the cost that I am forcing on other people if I don’t buy the product sooner rather than later.” While Ginsburg claims that the Commerce Clause allows a particular product, health care, to be treated differently than others because of the cost-shifting nature of the product, that cost-shifting only resulted from a statute that differentiated health care from other products. The cost-shifting problem was created by a statute. The solution to the problem is to repeal the statute, not to run roughshod over the Constitution. Ginsburg is putting the statutory cart before the Constitutional horse.

    Our society was able to deal with the problem of the uninsured before 1986; we can find a way to do it again — without surrendering our liberties to a rapacious Federal government.

  9. You could not be more right, Capn Rusty.

    Your analysis goes to ground: Health care is not an inalienable right anymore than house care or food care or “happy care,” which ultimately is a function of health care. The long list of dependent criteria,

    (In Lopez, the government wanted to argue that possession of a firearm near a school could be regulated as interstate commerce, because guns in school might lead to violence, which would lead to worse education, which would lead to dumber graduates, which would lead to a less productive national economy, which would mean less interstate commerce.)

    is proof itself how meaningless the progressive case is.

    Good to know a felllow out there.

  10. To expand upon Cap’n Rusty’s point, the imagined limiting principle would not exist regardless of the presence of the cited statute…

    If young people choose to not pay for insurance, their costs are shifted into the future. At some point, unless they are wealthy enough to be self insured, they will participate in the pool and pay for insurance at the elevated rates (assuming also that this is a demographic pattern and the young people entering the potential pool also choose not to buy insurance). They are therefore paying higher rates because young people are not buying insurance and thereby making up for the payments they didn’t make in the past.

    There was no limiting principle for Verrilli to cite.

  11. And for those of you who stayed home in 2008 rather than vote for John McCain, please note that Clement might be on the Supreme Court right now rather than either Sotomayor or Kagan (pick one) if McCain had won in 2008.

    Ah, counter-factuals. And if the Republicans had nominated a Republican instead of Rino…; or if McCain had declined the nomination; or if McCain had resigned in favor of Palin; or if “former” Democrats had remained Democrats and voted for a moderate in the primary; or if…

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