Obama lied about a central fact about his own life which he used — powerfully — to push health care reform.

"Book Challenges Obama on Mother’s Deathbed Fight," says the NYT, which, of course, isn't generally inclined to cast unnecessary aspersions on this President. "Lied" is my paraphrasing. The NYT wrote "mischaracterized."

During his presidential campaign and subsequent battle over a health care law, Mr. Obama quieted crowds with the story of his mother’s fight with her insurer over whether her cancer was a pre-existing condition that disqualified her from coverage.

In offering the story as an argument for ending pre-existing condition exclusions by health insurers, the president left the clear impression that his mother’s fight was over health benefits for medical expenses.

But in “A Singular Woman: The Untold Story of Barack Obama’s Mother,” author Janny Scott quotes from correspondence from the president’s mother to assert that the 1995 dispute concerned a Cigna disability insurance policy and that her actual health insurer had apparently reimbursed most of her medical expenses without argument....

The book came out in early May. The reason this article is hitting the front page today is that the NYT has been trying to extract a response from Obama.

On Wednesday, in response to repeated requests for comment that The Times first made in mid-June, shortly after the book’s release....

It took repeated requests for the NYT to get an answer to such an important question?!

... a White House spokesman chose not to dispute either Ms. Scott’s account or Mr. Obama’s memory, while arguing that Mr. Obama’s broader point remained salient.

Fake false but accurate?!

“We have not reviewed the letters or other material on which the author bases her account,” said Nicholas Papas, the spokesman. “The president has told this story based on his recollection of events that took place more than 15 years ago.”

This is the standard response of the memoirist: These are my memories. This is how I remember it. Even if I am mistaken, there is truth in the way this story has become part of me. (That notion is expressed beautifully in the interview at the end of the audiobook version of the thoroughly delightful "The Life and Times of the Thunderbolt Kid: A Memoir.")

But I don't accept that the President could have an innocently false memory about this story, which he milked dramatically, as Byron York describes here:

"I remember in the last month of her life, she wasn't thinking about how to get well, she wasn't thinking about coming to terms with her own mortality, she was thinking about whether or not insurance was going to cover the medical bills and whether our family would be bankrupt as a consequence," Obama said in September 2007.

"She was in her hospital room looking at insurance forms because the insurance company said that maybe she had a pre-existing condition and maybe they wouldn't have to reimburse her for her medical bills," Obama added in January 2008.

"The insurance companies were saying, 'Maybe there's a pre-existing condition and we don't have to pay your medical bills,' " Obama said in a debate with Republican opponent Sen. John McCain in October 2008.

Those terrible, heartless corporations have been a theme of the Obama presidency. He has been trying to structure American brains around that idea, so he can win acceptance of policies that most Americans don't want, and that story of his personal agony played an important role in pushing through an immense federal power.

Beyond Obama's blue pill: folksingers!

What medical treatments will the government approve, in the future, for the aging population of America? Two years ago, President Obama let it slip that cheap painkillers would supervene more expensive cures. And here's a new, low-price palliative for the oldies:

Every week, three music therapists from MJHS Hospice and Palliative Care crisscross the city and suburbs to sing songs to the dying. With guitars strapped to their backs, a flute or tambourine and a songbook jammed in their backpacks, they play music for more than 100 patients, in housing projects, in nursing homes and even in a lavish waterfront home. The time for chemotherapy and radiation is over.

The music begins: a song to hold death at bay, a song to embrace death, or to praise God. A Vietnam veteran asks for a song in Vietnamese. One man asked only for songs with death in the lyrics, to force his family to talk to him about the future. He was ready to talk about it. They weren’t. So the therapist sang Queen’s version of “Another One Bites the Dust.” “Amazing Grace” and other spiritual songs are most often requested just before death.

It's a jobs program for sensitive young women who might feel uncomfortable busking on the city streets, waiting for cold-hearted businessmen to drop a dollar in their guitar cases. The government will drop the dollar in, and the elderly patients will be too polite (and also physically unable) to walk away.

Welcome to the hospice, where the strumming of Joan Baez wannabes will prepare you for death. They will ease your "final transition." You'll be ready to die before they're ready to leave.  If you hang out too long at the hospice, be forewarned: When you've heard "Amazing Grace" 10,000 times, you've only just begun.

Can't we please pick our own music? Recorded music played by virtuouso musicians? Maybe Beethoven's 6th Symphony.... or "The Man in the Box"....



IN THE COMMENTS: Jim said:

I was on the faculty in a music department with a music therapy program for ~25 years, and taught a couple of courses to students majoring in MT during that time.

The MT professors/practitioners have been relentlessly pursuing their dream of obtaining funding from medical insurance and the public schools. They point to a growing body of MT research - all of it advocacy, most of it incompetent, much of it just silly - to support their lobbying for the loot.

ALSO: When you get to that hospice and the folksinger arrives, remember John Belushi. (Suggestion via RLC in the email and Sixty Grit in the comments.)

6th Circuit upholds the individual mandate.

Ilya Somin comments:

Today’s 2–1 Sixth Circuit Court of Appeals decision upholding the constitutionality of the individual mandate is undeniably a setback for mandate opponents. Up until now, judges’ votes in the mandate cases had split along ideological and partisan lines. Every conservative Republican judge had voted to strike it down, while every liberal Democrat voted to uphold it. Even in the Sixth Circuit, two of the three judges fit the same pattern (Judge Boyce Martin, and Judge Graham in dissent). But Judge Jeffrey Sutton, a well-known conservative judge has now become the first exception to it. Like Martin, he voted to uphold the mandate as an exercise of Congress’ powers under the Commerce Clause.

At the same time, Martin and Sutton’s opinions highlight a central weakness of the pro-mandate position in even more blatant form than previous opinions upholding the mandate. Their reasoning has extremely radical implications. Unlike previous decisions upholding the mandate, which ruled that failing to purchase health insurance is “economic activity,” Martin and Sutton conclude that Congress has the power to regulate inactivity as well, so long as the inactivity has some kind of “substantial” economic effect.

The individual mandate "may violate the constitution of Ayn Rand, but they do not violate the Constitution of the United States."

Said Acting Solicitor General Neal Katyal said today, in oral arguments before the Eleventh Circuit, as reported by Sasha Volokh, who quips "Mr. Herbert Spencer, call your office."

***

The quip refers to the Oliver Wendell Holmes Jr. dissent in Lochner v. New York:

The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics.

Lochner is a much-deprecated case from 1905.

The Obama administration will challenge Indiana's attempt to defund on abortion.

Reports the NYT under the headline "U.S. Objects to New Law on Clinics in Indiana":

If a state Medicaid program is not in compliance with federal law and regulations, federal officials can take corrective action, including “the total or partial withholding” of federal Medicaid money...


Administration officials said the Indiana law imposed impermissible restrictions on the freedom of Medicaid recipients to choose health care providers.

Indiana is one of at least a half-dozen states that have taken aim at Planned Parenthood because it performs abortions, about one-fourth of those performed in the United States.

But we heard over and over, as the Democrats pushed health care reform, that federal law prohibits funding abortion. How then could Indiana's attempt to withdraw funding abortion violate federal law? How could federal law require states to fund abortion?

Asked for comment on the Indiana law, the federal Centers for Medicare and Medicaid Services provided this statement, cleared by the White House: “Federal law prohibits federal Medicaid dollars from being spent on abortion services. Medicaid does not allow states to stop beneficiaries from getting care they need — like cancer screenings and preventive care — because their provider offers certain other services. We are reviewing this particular situation and situations in other states.”

Medicaid is financed jointly by the federal government and the states, which must comply with federal law as a condition of getting federal money.

So a key point seems to be that Planned Parenthood offers plenty of services other than abortion, and Indiana's law isn't limited to withholding funds for abortion.

It seems unavoidable that abortion will be a central issue in the 2012 presidential campaign. Perhaps this is the real reason Mitch Daniels is avoiding running. He wanted "a truce the so-called social issues," but his signature is on that Indiana law, and he would have to defend it over and over again.

Ezra Klein admits: "Scott Walker’s procedural maneuvering last night was ... legitimate."

A nice effort at making a show of not being a hypocrite:

Certainly as legitimate as the Democrats fleeing the state to deny the Republicans quorum. They did something procedurally extraordinary to stop the bill from being passed, and he did something procedurally extraordinary to get the bill passed.



It seems to me that the system worked. Democrats were able to slow the process down and convince both voters in Wisconsin and the national media that there was something beyond business as usual happening in Madison. National and state polls show they were successful in that effort. Walker and the Senate Republicans ignored the Democrats’ attempts at compromise and ignored the public turning against them and decided to pass the legislation anyway.

That was their prerogative, and now it’s up to the voters to decide whether to recall the eight Senate Republicans who are eligible for judgment this year, and to defeat Walker and the other Republicans in a year or two, when they become vulnerable to a recall election. That’s how representative democracy, for better or worse, works. The representatives can make unpopular decisions, but the voters can punish them for it. I thought that during the health-care debate, and I think that now — though I would be interested to see whether any of the conservative voices who were shocked and appalled by President Obama’s decision to ignore public opinion and finish health-care reform using the reconciliation process are calling for Walker’s head today. If not, I think they need to ask themselves what makes this case different.

Klein also notes the technical question whether the procedural move violates the state's "open records" law.

Imagined dialogue with my conlaw class on the topic of the individual mandate.

ALTHOUSE: So, maybe you noticed that after all that discussion about whether the commerce power supports the individual mandate, I never said whether I thought it did.

CLASS: Yes, and... does it?

ALTHOUSE: We'll have to hear the answer from the Supreme Court.

CLASS: But what do you think?

ALTHOUSE: What does it matter what I think?

CLASS: You're grading our exams.

ALTHOUSE, enigmatically: And that's exactly my point.

"Judge Gladys Kessler of Federal District Court for the District of Columbia became the third appointee of President Bill Clinton, a Democrat, to reject a constitutional challenge to the Affordable Care Act."

"Two other federal district judges, both appointed by Republican presidents, have struck down the law’s keystone provision, which requires most Americans to obtain health insurance starting in 2014."

It's starting to look like a pattern.

"Medical school ethics courses are...increasingly emphasizing 'social justice' over traditional notions of ethics — or the individual patient’s welfare."

"But 'social justice' is frequently just a euphemism for a socialist political agenda of leftist politics, redistribution of wealth, and heavy state controls over the marketplace."

Says Paul Hsieh (via Instapundit) in the context of explaining those Wisconsin doctors writing excuses for protesters — and tweaking our anxieties about Obamacare.

The Wisconsin protests have shown how some doctors are seemingly willing to subvert their professional integrity to serve the political ends of government special interest groups. Under ObamaCare, when similarly trained doctors have to choose between practicing in their patient’s medical interests or in the political interests of their government paymasters, which side will they choose? And will you want this new breed of doctor taking care of you when you’re sick?

Interesting questions, but to be fair, the doctors handing out the notes were helping individuals, not burdening the individuals for the sake of the greater good. Hsieh links to me and says:

University of Wisconsin law professor Ann Althouse spoke with one of these doctors who was completely unapologetic for his actions, saying that it was “not dishonest” but rather “an ok thing to do” because it was in the interest of “social activism.”

To be extra accurate: I ask the man if what he's doing is "dishonest," and he says, "It's not dishonest. It might be a little social, oh, gosh, what do you call it?" I say "Activism?" He seems about to say one thing, the stops himself and says "It's an okay thing to do" then goes on to talk about how teachers matter a lot to him. He notes that he is genuinely "seeing" the patients (on the street corner) and they do have their symptoms. It's not the most explicit embrace and promotion of social activism. Indeed, he may very well be motivated by nothing more than a desire to help the nice teachers so they won't get in trouble at their jobs.

That said, I'm concerned about the general trend of medical ethics in the form of "social justice" ideology, if that's really what is going on. Is it?

Why do some people presume the best of the Egyptian protesters and the worst of the Tea Party protesters?

This is something I've been mulling over especially after I heard Rush Limbaugh tie up a long monologue like this:

I find Obama's respect for protests funny.  He hates the Tea Party, he hates their rallies, he accuses them of being all kinds of things, but the protesters in Egypt, why, they are great, Muslim Brotherhood, secular, they're not interested in violence. Obama loves these people in Egypt all the while he is in violation of a federal judge.  This man is so concerned about the law in Egypt, he's got his own health care bill declared unconstitutional, and he acts like the court has never ruled.  So all this talk about democracy and the rule of law, give me a break, he's flipping Judge Vinson the bird.

He may claim to love democracy in Egypt.  He knows what that group is.  He's a community organizer.  He knows exactly what that group is.  That's why he's such a big supporter of that.  He knows that group's just a bunch of agitators.  But to sit around and start talking about, "Oh, we love democracy, and whenever we see it bubbling up, we're gonna support it out there."  Yeah, except when the judge says your health care bill's unconstitutional, we're gonna ignore that.  He loves democracy in action except when it's the Tea Party.  Then all of a sudden they become a bunch of tea baggers, as far as he's concerned.  Yeah.  I'm not kidding.  The American Tea Party, they're responsible for shooting people, they're responsible for all the violence. I mean, who's worked this crowd up into a fevered pitch?  I don't know that my program's on the air there.  And if it were -- he-he-he-he-he-he-he -- they wouldn't like me much.

There's a lot of stuff in there. I'm focused on the question I put in the title. Obviously, I'm also interested in the health care case. He wove that into the discussion — awkwardly... or elegantly?

Meanwhile, the NYT reports:

The Egyptian military, complying with most of the principal demands of the opposition, said Sunday that it had dissolved the country’s parliament, suspended its constitution and called for elections in six months, according to a statement by the Supreme Council of the Armed Forces read on state television. It also said it would honor all of Egypt’s international agreements, including the peace treaty with Israel.

The military did not address a third major opposition demand to lift emergency rule. In previous statements, the council had promised to take that step once the security situation improved.

So, at this point, it's pretty much a military coup, making references to an entity called "the opposition," dissolving parliament, and suspending the constitution. I'm just trying to understand what's going on and why we should feel so much confidence about it.

Or is it political theater? Perhaps Obama et al. are only acting as though they have full confidence that the outcome will be democratic and free, because it is a way to state our expectations, make that outcome more likely, and position us to pressure the military government if that doesn't happen.

Have I stumbled into the answer to my original question up there in the post title? If it's "political theater," then a completely different set of gestures with respect to the Tea Party makes perfect sense.

I have to take a 3rd shot at Larry Tribe's op-ed: That big word "choice."

Here's my first shot and here's my second shot at Larry Tribe's op-ed purporting to say why the Supreme Court will come down in favor of the constitutionality of the individual mandate to buy health insurance. I didn't set out to write one post after another about the op-ed, but I must go on to talk about his use of the word "choice" — which is monumentally important in the discussion of abortion rights. Tribe's op-ed has nothing to say about abortion. I wonder if he would have written it differently if abortion had crossed his mind, but I can't believe that a constitutional law professor would overlook the abortion-related significance of the word "choice."

Tribe's op-ed, as I wrote in the first post, rests very heavily on misrepresenting the Supreme Court's commerce power doctrine as referring to "commercial choices." In fact, the cases refer to "commercial activities," and a switch from "activity" to "choice" is immensely important in the health care litigation, in which opponents stress that the failure to buy insurance is inactivity, not activity, and therefore beyond even the broadest interpretations the Supreme Court has ever given to the Commerce Clause.

Tribe attempted to skew opinion by substituting "choice" for "activity," and I have called him on that. But I need to go further, because someone who uses words to get things done needs to be kept honest not only about shifting from one word to another, but also about changing the meaning of the same from case to case. Let's look at how Tribe talked about "choice" and health insurance and then see how that squares with what "choice" is supposed to mean in the abortion context.

In today's op-ed, Tribe wrote:

Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation.

You can see that Tribe has given a very broad definition to the notion of choice. People bumble along, doing what they want, aware of the chance of an undesirable outcome, vaguely expecting to take advantage of an out that isn't very nice. That's a choice. It is something real and specific that the individual has done. Society can, as a group, based on our idea of the good, say to that person: We are now going to require you to take responsibility at that early decision point of yours. So Tribe says.

Now, apply that to abortion. If we take a similarly broad view of choice, we could say — as anti-abortion advocates do — that women who know they may be fertile have a choice when they go ahead and have sexual intercourse with a man. They can refrain from having sex, but if they go forward, they know that if they need emergency-room care get that they can’t pay for get pregnant, the public will pick up the tab they can get an abortion.

Of course, the Supreme Court case law does not present the woman's right to choose in terms of taking responsibility at that early point. It says:

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

The choice that matters is an elaborate process of high-level reflection that occurs after the woman becomes pregnant — that is, when it's too late to take the precautions that the majority might have liked her to take so that she would not show up with the demand for something it wants to prevent.

I realize there are many distinctions that can be made between health insurance and abortion, but there is so much sophistry around the word "choice" that I think it's important to concentrate on what choice means and how it matters in the law. It seems to me that society, acting through a legislature, may have a preference about when an individual should be required to make a choice, and that the individual, valuing autonomy, may want a broader range of choice than the majority would like to permit. When we think about government power and individual autonomy, how consistent must we be about what "choice" means?

Professor Tribe would like you to know how nonpartisan the Supreme Court Justices are ... I mean, will be, when they decide the individual mandate question the way he would like.

The NYT has an op-ed by lawprof Larry Tribe that purports to demonstrate how obvious it supposedly is that the Supreme Court will find the health care law constitutional.

The justices aren’t likely to be misled by the reasoning that prompted two of the four federal courts that have ruled on this legislation to invalidate it on the theory that Congress is entitled to regulate only economic “activity,” not “inactivity,” like the decision not to purchase insurance. This distinction is illusory. Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation.

Of course, the argument Tribe likes was presented, considered, and rejected in the 2 federal court cases. It's a perfectly comprehensible argument, but that doesn't make its success in the Supreme Court a sure thing. Acting as if it does, Tribe says "it’s distressing that many assume its fate will be decided by a partisan, closely divided Supreme Court." Oh, you terrible people who fail to bow to the obviousness of one side of a constitutional argument! You compound your sins by falling prey to the upsetting belief that the Supreme Court Justices are politically partisan!

To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity.

That's not sarcasm. Read the whole thing. You'll see, it's not intentional sarcasm. It might be an attempt to sweet-talk Scalia into using the health-care litigation to score some political neutrality points, but it's not sarcasm. It's more: Ah! What a fine Justice, full of integrity and intellect, I will say Justice Scalia is if he decides this case my way!

Justice Anthony Kennedy, whom many unfairly caricature as the “swing vote,” deserves better as well. 

Oh! People are sooooo unfair to Justice Kennedy. I, Larry Tribe, will protect him from the scurrilous "swing vote" remarks people make.... when he decides this case my way!

Yes, his opinion in the 5-4 decision invalidating the federal ban on possession of guns near schools is frequently cited by opponents of the health care law. 

I hope they do a better job of pointing at the Lopez case than that NYT link does. Here's the right link, in case anyone cares.

But that decision in 1995 drew a bright line between commercial choices, all of which Congress has presumptive power to regulate, and conduct like gun possession that is not in itself “commercial” or “economic,” however likely it might be to set off a cascade of economic effects. 

Drew a bright line, eh? But the line, if you can call it a line, isn't about "commercial choices." That's Tribe's phrase — as he assures us the line is bright! — and what the Court said was "commercial activity" — which is why the argument about the distinction between activity and inactivity has been so important in the health care litigation. Tribe declares lines to be bright precisely at the point when he is shedding darkness. (If you think you can't shed darkness, I agree. I'm just riffing on the linguistic oddity of the lawyer's expression "bright line." Aren't easy-to-see lines usually dark — like black ink on white paper?)

The decision about how to pay for health care is a quintessentially commercial choice in itself, not merely a decision that might have economic consequences.

"Quintessentially" is such a strong word that perhaps you will not notice that it's next to the phrase that is not "economic activity."

Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law.

Oh, come on. Tribe's rhetorical move has become comical at this point. It reminds me of an old-fashioned mother exerting moral pressure on a child by telling him how sure she is that he is such a good little boy that he could never do whatever it is she doesn't want him to do. Put more directly, it's an assertion of authority: I'm telling you what's right and if you don't do it, you'll be wrong. Could the Justices possibly yield to pressure like that? It's crude to think that they would, isn't it? It's an insult both their intellect and their integrity.

And yet, Larry Tribe does think it, right? That's what's behind his rhetoric. I believe. Crudely.

UPDATE: I have 2 more posts about this op-ed, one dealing with Tribe's disapproval of people who fail to take responsibility and one dealing with the meaning of "choice."

Mitch Daniels in the WSJ: "Unless you're in favor of a fully nationalized health-care system, the president's health-care reform law is a massive mistake.."

The Indiana Governor (and potential GOP presidential candidate) ponders what the states can do if the law is not repealed or judicially voided. The states cannot be commandeered to run the program, so there is leverage to bargain. These are the conditions that 21 governors have proposed to the Secretary of Health and Services:

• We are given the flexibility to decide which insurers are permitted to offer their products.

• All the law's expensive benefit mandates are waived, so that our citizens aren't forced to buy benefits they don't need and have a range of choice that includes more affordable plans.

• The law's provisions discriminating against consumer-driven plans, such as health savings accounts, are waived.

• We are given the freedom to move Medicaid beneficiaries into the exchange, or to utilize new approaches to the traditional program, instead of herding hundreds of thousands more people into today's broken Medicaid system.

• Our state is reimbursed the true, full cost of the administrative burden to be imposed upon us, based on the estimate of an auditor independent of HHS.

• A trustworthy projection is commissioned, by a research organization independent of the department, of how many people are likely to wind up in the exchange, given the large incentives for employers to save money by off-loading their workers.

Obviously, this is a very different system than the one the legislation intends....

That's a GOP proposal on how to tweak health care reform, which is what Obama and others have said they need. With the prospect of 21 states dropping out of the enforcement regime, there should be real pressure to work with them and try to draw them back in.

On the other hand, you really are in favor of a fully nationalized health-care system, then you might celebrate the states failure to go along with the attempt to include them. And if what happens is, as Daniels predicts, "first-rate operational catastrophe," then that sets up the collapse into the only workable fix a fully nationalized health-care system.

"[I]f the Democrats, who called this hearing, hoped to blunt the momentum of the legal challenges by showing that the lawsuits had no merit, they failed in their objective."

Randy Barnett has some thoughts about the Senate Judiciary Committee on the constitutionality of the health care law. (Which we've already talked about here, here, and here.)

Randy says:

If anything, press coverage generally reflected the view that both sides made strong arguments, and that only the Supreme Court could settle the matter. Indeed, my impression is that the hearings served to advance the credibility of the challenges. 

Clearly, we've advanced beyond "Are you serious? Are you serious?"

Randy "was particularly struck by the cordiality and collegiality shown to all the witnesses by Senator Durbin."

Not only did he genially greet each one of us beforehand and thank us individually afterwards, he paid close attention to everything each of us said, and what each fellow Senator said, for more than two hours of the hearing. 

He listened, he really, really listened!

Now, that's nice, but, really, the hearing, from Durbin's perspective, was probably the Theater of Listening. If the courts are going to uphold the law, it will be because they decide that the appropriate judicial role is deference to Congress's decision that it has power under the Constitution to pass the law. Looking terribly interested in the details of the legal arguments creates the impression that you deserve deference.  

Look! I'm living up to my independent role of determining that the law I'm drafting and voting for is constitutional.

Of course, having the hearing after the law is passed (and after the threat from the courts has materialized) doesn't really inspire the confidence that is needed to justify judicial deference to Congress.

But that's all the more reason to do good theater.

Will the Supreme Court accept an Obamacare appeal without waiting for a Court of Appeals decision?

That's what Virginia attorney general Kenneth Cuccinelli is attempting to make happen in Virginia v. Sebelius.

Rule 11. Certiorari to a United States Court of Appeals Before Judgment
A petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is entered in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require im mediate determination in this Court. See 28 U.S.C. §2101(e).

It is extremely rare for the Court to grant certiorari before judgment of a court of appeals.... A quick Westlaw search (in which I certainly may have missed something) indicates that the last time the Court did so — setting aside cases in which the Court took a case and consolidated it with another one coming from the court of appeals, or simply granted cert to vacate and remand in light of a recent decision — was 23 years ago in United States v. Mistretta. There, the district court had declared the newly minted U.S. Sentencing Guidelines unconstitutional as a violation of separation of powers. And the need for quick judicial resolution was extremely pressing — it affected the sentencing of every single federal defendant in the country.

What is the argument for urgency here? So much effort and money are being wasted if it is in fact the case that the reform is void. 

How Patrick Leahy saved Charles Fried from revealing that many law professors think judges should decide constitutional questions to produce the best policy consequences.

At yesterday's Senate Judiciary Committee hearing on the constitutionality of the Affordable Care Act, Republican Senator Charles Grassley asked what you might think is a very basic question: "And do you think that judges should decide cases based on their best understanding of the meaning of the Constitution or on whether they think their rulings would have good or bad policy consequences?"

The witnesses — Oregon Attorney General John Kroger, lawyer Michael Carvin, and law professors Randy Barnett, Walter Dellinger, and Charles Fried — all immediately agreed [ADDED: with the first option].

Grassley, who was running out of time, added, "Obviously, it's good to have that understanding, that we're a society based upon law and not upon what judges just happen to think it might be." 

It was Senator Leahy's turn at that point, and he began, spontaneously, off-script:

LEAHY: Actually, on that last question, Professor Fried, do you know anybody that disagrees with that, whether the left or the right?

FRIED: Well...

LEAHY: I mean...

FRIED: Yes, I'm afraid I do.

LEAHY: They don't admit it. But do you know anybody who should disagree with it?

FRIED: Not a soul.

LEAHY: I thought you might feel that way.

Now, Fried is a professor at Harvard Law School. Of course, he knows lots of people who think judges should decide cases based on "whether they think their rulings would have good or bad policy consequence" and not on some sort of "understanding of the meaning of the Constitution." I'll bet he knows many people whose understanding of the meaning of the Constitution already automatically is: whatever would have good policy consequences.

But when Leahy says "They don't admit it," Fried does not answer. Fried was saved from having to admit that he knows plenty of people — I'll bet he does — who would proudly admit it. I know law professors who not only admit it but trash you as naive or evil if you won't go along with them.

Leahy moves quickly to another question thus closing the uncomfortable opening: "But do you know anybody who should disagree with it?" Ah! The relief of the word "should"! If he had said "does," Fried would, in all likelihood, have had to say "yes." But Leahy said "should," and Fried could say "Not a soul." And Leahy could totter ahead onto his prepared script. Whew! That was a close one!

(I'm sorry I don't have a transcript to link to. Here is video of the event.)

The Senate Judiciary Committee has a hearing on the constitutionality of the health care law.

Oh, look! They're finally paying attention to a little technical matter they ought to have taken account of a year or so ago.



Watch with me.

"Now that the law is 'dead,' will Wisconsin return the money or rebuff any other federal grant money?"

"Will other state governments declaring the law dead do the same? If so, how much money do they stand to lose? How will this impact their consistuents [sic]? It's a pretty worthwhile line of inquiry."

Well, yeah, it sure is. Congress larded the 2,000-page bill with so much spending that we're supposed to be so fat by now that we can't do anything more than roll over and submit to any unconstitutional excesses of power that came with the lard. How dare Wisconsin's Attorney General stand up and say no?!

***

I put "sic" up there because I assume "consistuents" is a typo, not a portmanteau, a deliberate incorporation of "sissy."

Judge Vinson's utterly mundane opinion striking down the health-care law.

Here's the text of Judge Vinson's opinion in Florida v. United States Department of Health and Human Services. It's 78 pages long but quite clearly written, and much of it summarizes the Supreme Court case law. If you don't know the cases, I think you'll find that part readable. If you do know the cases, I think you'll find that part easily skimmable. The meat of the opinion begins at the bottom of page 37, and it follows arguments that should be familiar if you've been reading about the litigation.

Applying the case law to the facts, Vinson focuses on the problem that the individual mandate to buy health insurance reaches individuals who are not engaged in any economic activity. The Supreme Court case law doesn't answer the question whether Congress can require action of those whose inactivity can be characterized — when you take all the inactive people in the aggregate — as having a substantial effect on interstate commerce. I think when the case reaches the Supreme Court (assuming it does), there will and should be more creative arguments about fine-tuning the doctrine, but the district judge has no option other than to apply the case law to the new situation: "I am required to interpret this law as the Supreme Court presently defines it."

Vinson decides that Congress cannot reach inactivity, basically making the simple and straightforward point that we have a system of enumerated powers, and if Congress could reach inactivity because of its economic effect, then it would seem that Congress could regulate everything. There has to be some limit, so the line should be here. I don't think the line does need to be there, since one could stress the extreme degree of the effect on interstate commerce and the great value of designing a coherent system of paying for health care by taking account of the entire, interrelated system of health care services, including the potential future demands on it that everyone represents, even if they happen to be nonconsumers right now. Why not say that is within Congress's power, yet other things remain beyond its power? That too would preserve the structure of enumerated powers. I don't think, in the end, the Supreme Court will be at a loss to articulate a line that includes regulation of the entire enterprise of paying for health care, including health care for people who resist buying it, hoping for continued good health, enough savings to cover future expenses, or free care financed by the rest of us. Distinguish other kinds of inactivity, and it would preserve the idea that something must be outside of Congress's power.

Vinson does engage with this idea, but he's limited by the need to abide by the Supreme Court's case law. Under that constraint, he talks about whether the "uniqueness" of the health care market somehow transforms inactivity into activity. (This discussion begins at page 45.) He refutes uniqueness by coming up with additional examples of markets the individual can't choose to opt out of — housing and food. But housing and food aren't much like health care. They do depend on our all having bodies, but we always need housing and food. Health care is the one thing that you're tempted to think you can get by without, but you might get hit with a huge expense that you can't possibly cover. If you don't buy insurance, you're gaming the system, and some of the people who game the system will take advantage of the rest of us who participated. It really is different from housing and food. You've got constant pressure on you to provide for those things.

Finally, there's the Necessary and Proper Clause, which was key to Justice Scalia's joining the liberal members of the Court in approving of Congress's power to ban possession of marijuana (even in the home-grown, state-approved-medical-use situation). And there's the issue of severability. I'm going to save those topics for separate posts.

My point here is that Judge Vinson has produced a workmanlike application of the Supreme Court case law devoid of flights of creativity, as befits a district court judge.  Politicos who froth about what an extreme activist he is are trying to cow the judiciary into approving of the law because it's a big fucking deal.

"A federal judge in Florida says the Obama administration's health overhaul is unconstitutional, siding with 26 states that had sued to block it."

"U.S. District Judge Roger Vinson on Monday accepted without trial the states' argument that the new law violates people's rights by forcing them to buy health insurance by 2014 or face penalties."

MORE: NYT:

Judge Roger Vinson of Federal District Court in Pensalcola, Fla., ruled that the law will remain effect until all appeals are concluded, a process that could take two years. However, Judge Vinson determined that the entire law should fall if appellate courts agree with his opinion that the insurance requirement if invalid.

That is, the judge rejected the severability argument.

The judge’s ruling came in the most prominent of the more than 20 legal challenges mounted against some aspect of the sweeping health law... 

The plaintiffs include governors and attorneys general from 26 states....