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Member since: Wed Jul 20, 2005, 12:23 AM
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Anyone still think the SCOTUS will uphold the PPACA?

I posted a thread a couple of days ago, wherein folks argued that the very smart folks in the Obama administration said this was constitutional, and that it would therefore be upheld. Of course, these same very smart folks failed to ensure that the final version of the bill would include a severability clause, so that's really not a particularly strong argument.

Some other folks claimed that the court would uphold the PPACA, even going so far as to predict that Kennedy would support it, perhaps even along with Roberts and Scalia (!).

From the transcript, the solicitor general seems to have offered a pretty stammering defence of the PPACA. He seemed to want to come back to the phrase "It's a market," and was caught utterly flatfooted by what seem to be witless analogies offered up by the five who are poised to strike down the PPACA.

Politico includes a link to the transcript:


Again, most of the legal analysis has referenced prior decisions and opinions by specific justices, as though they were in some way beholden to ideas. They are not. These are members of the GOP, in lockstep with their national party, who want nothing more than to declare the PPACA unconstitutional and hand the president a loss and hand Mitt Romney an issue--after all, Romneycare would be constitutional, but not the PPACA, which would kill an issue that has haunted him.

Legal arguments, stare decisis, and, the constitution itself simply do not matter to the SCOTUS when it comes to handing a political loss to Barack Obama. Some people, apparently including the Solicitor General, believe the Court has a "solemn obligation to respect the judgments of the democratically accountablebranches of government."

That is a quaint notion. If you held it before, Bush v. Gore ought to have disabused you of it. If not, at least take this opportunity to learn something. The court does not care about its standing as an institution, or at least the GOP justices don't. Maybe they might care about the law in a fairly obscure criminal case that has somehow made its way onto their plate, but in a political question you can expect they will rule politically, and tack on legal decisions as a post hoc formality.

Students of judicial politics

should pay little attention to what judges say and more attention to what they do. There are always legal arguments and precedent on both sides of an issue: moreover, it is possible to constuct an argument that appears consistent with almost any given "judicial philosophy" on either side of an issue.

Any vestige of faith that I ever might have entertained that the court gave a rat's ass about stare decisis, the constitution, its own institutional integrity or the public's opinion of it ended with Bush v. Gore. Those five revealed themselves to be purely partisan when the stakes are high enough, and three of them are still sitting. If they are embarassed enough by their own decision, they can simply declare whatever post hoc rationalization they tack onto the foregone partisan conclusion they issue "nonprecedential."

The conservative movement is today, and has been since the Reagan era, in lockstep, from K-Street to Congress to the SCOTUS. They are all reading off the same daily talking points. Since both possible nominees have declared that the PPACA is unconstitutional, it seems unlikely that they would undermine them in this way before the election.

I'd love it if the very smart people in the Obama administration are right and that there's no basis to declare the PPACA unconstitutional, but these are the same folks who failed to make sure that there was a severability clause in the final product, so there's no reason for optimism on that score. To me, the notion that Scalia, Thomas, Roberts and Alito care about ideas or principles more than their favored partisan outcome seems quaint. I don't have any money on it, but it seems to me that the real question is whether they strike down the whole thing or simply the mandate, but it should go without saying that they will find a way to enable Mitt Romney to point to the PPACA as an example of unconstitutional caesarism on the part of Obama this fall.

Supreme Court poised to strike down PPACA

After Bush v. Gore, no one can suggest that the Supreme Court is an impartial, apolitical body. That case had everything that the literature on the Court would suggest would lead to the case not being heard, except for one thing: the Court cared a great deal that a Democrat not occupy the White House.

And so we go through a farce this week, with the Supreme Court hearing arguments about the PPACA. They will strike down the whole thing, not matter what is said. We've spent most of my lifetime dealing with this issue politically, and yet, here, when we find a political solution has been arrived at, the Supreme Court is set to strike down the whole thing and return to the status quo ante.

I had heard a supporter of the PPACA on the radio this week asked about portability, about how it would be that a provider in one state would be able to get paid by an insurer in another. His answer was that he didn't know, but that "I'm sure they thought of that." Folks, no one ought to make this argument either. The PPACA has no severability provision in it. Imagine that. How can that be? That's lawmaking 101: this is a big, important piece of legislation, one sure to go before the Cort at some point, and yet the severability clause was somehow left out in reconciling the House and Senate bills. We're supposed to buy that? Here it is, the most important health care legislation this country has ever seen, and severability was left out "by mistake?"

It's enough to make one paranoid. It's as though the whole thing has been a delay so that insurance companies can continue to ratchet up premiums and copays so that they can make ever more money. Its as if the same folks who made sure that the most important provisions wouldn't take effect until 2014 also knew that the court would strike it down before then, and so omitted a severability clause.

After the Supreme Court strikes down the PPACA, we need to make this a campaign issue. We have tried working with insurers, to the point of passing, under Democratic control, a proposal first outlined by the Heritage Foundation in 1989. If an insurance-run health care scheme is unconstitutional, then it's time for Medicare for all.

It's not an isolated Incident: The massacre and Lt. Col. Davis

Leon Panetta has described the latest rash of events in Afghanistan as a series of "isolated incidents." To see these cases-the urinating on corpses by elite snipers (who are supposedly some of the best disciplined troops), the "accidental" burnings of the Korans, and the incident wherein yet another solder, one who trained as a sniper and was based at the same Washington base as the now-infamous "kill team" that made headlines by taking trophies-as simply isolated incidents requires a wilful blindness to the parallels with Vietnam, another long war that became an endless quagmire that broke down the discipline of US troops

"Each of these incidents is deeply troubling." "We will not allow individual incidents to undermine our resolve."

Goddamn, this sounds familiar. These incidents are not isolated: they occur in a broader context of an endless quagmire, no matter what Panetta claims to the contrary. They also ressurect the specter of another stereotype from the Vietnam era, that of the twitching, ever-ready to snap veteran. Panetta himself apparently believes there is some truth to this: according to news accounts, when he met with Marines in Afghanistan, they had to meet him without their arms:

"In a sign that nerves are on edge, a group of US Marines waiting to hear Panetta speak inside a hall were asked to leave their rifles outside.

American troops typically have their rifles in hand when the US defence secretary addresses them."

So, to summarize the administration's position:

1. These are isolated incidents perpetrated by a few bad apples

2. The strategy is working and we ought to stay the course

3. Please leave your weapons outside

It's not a question of resolve: it's a question of common sense. The counter-insurgency strategy supposes that we will win the hearts and minds of the Afghan people, but that's really hard to do when a few bad apples persist in burning their holy books, urinating on corpses, taking trophies and killing their children in their sleep. It seems to me that this goes beyond a PR problem, which is how the administration seems to be handling these problems.

These isolated incidents have also taken place less than a month after Lt. Colonel Daniel Davis issued his report documenting the Pentagon's malfeasance in Afghanistan. You have to call it malfeasance, or worse. To anyone even remotely familiar with the US military, the language used in the report is simply shocking, especially coming from a Lt. Colonel sent by the Pentagon to look into Afghanistan, especially in that he publicized this report and sent it to the Inspector General.

Lt. Colonel Davis is someone who is a real American hero. His once-promising career is over, because he shows in detail how top Pentagon brass have lies to the public. You need to read this:


Davis documents that Panetta's dismissal of the latest massacre as simply an "isolated incident" is exactly parallel to the way the US military in Afghanistan has handled any and every setback: it has been denied and dismissed. The result, according to Davis:

"One of the least considered consequences of mendacity, even among Members of our Congress, is that when we do not deal honestly with public audiences our credibility and reputation take significant hits. This loss of credibility itself has hidden consequences. A diplomat I know from a nation very friendly to the United States recently told me how things look to even some of our best allies."
"Despite overwhelming physical evidence of our failure to succeed on the military front, senior US and ISAF leaders inexplicably continue a steady stream of press releases and public statements that imply the exact opposite. Far from positively influencing the target audiences in the region, our words and actions unequivocally work to our disadvantage, as it causes both our friends and foes to question what we say. One Washington, DC-based foreign diplomat with whom I recently talked, explained that diplomats from other countries whom he knew shared his view: the problem isn't so much they have lost confidence in the truthfulness of our public statements, but possibly something worse - they suppose we genuinely believe what we're saying, but our ability to accurately assess difficult foreign problems is flawed."

In its handling of the massacre, the Pentagon has proceeded exactly in the same way it has mishandled other debacles in the theater. It's noteworthy, for example, that the name of the suspect has yet to be released. Why? After all, when Major Hasan killed other soldiers at Ft. Hood, his identity was released within three hours. So when an American soldier murders other soldiers on base in the US, his name is released immediately, but when an American soldier sneaks off in the middle of the night to murder civilians and their children in their sleep in Afghanistan, it's treated as a matter of national security. The soldier's family has already been placed in protective custody, and he has been secreted out of the country, so why is it they have not released his name? Especially given that this is an isolated incident and there's nothing to hide.

According to Lt. Colonel Davis, actual failures on the ground are covered up, and not acknowledged publicly. Of course we're not going to change course, we're winning? It's easier to claim victory when you are covering up your failures. But what if public support for the war should drop? Would that be a reason for leaving? Surprise surprise surprise, the answer is no:

Little said recent polls that show a lack of American support for the war will not impact the strategy.

"We are not conducting this war effort by polls. We are not going to be guided by polls, which can change on a daily if not hourly basis," Little said.
Pentagon spokesman George Little

These are isolated incidents, but we don't trust Marines to have their weapons when Panetta addresses them. Public support for the war is falling, but that's certainly no reason to leave, because we're winning. Oh, and we're really really winning, never mind that a Pentagon senior officer has accused top brass of lying and covering up failures. We are building the capacity of Afghan security forces, never mind the fact that these forces appear to be killing US troops whenever they get the chance.

We will leave only when all the problems in Afghanistan are solved, and not before, never mind the fact that there's little evidence that more guys with guns have ever solved any of Afghanistan's problems.
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