In an unusual move, the King made audio recordings and transcripts of the hearings available to the public shortly after each day's arguments. It was interesting reading. Apparently the meat of the various arguments had been previously submitted, and all parties had an opportunity to examine the arguments and research the prior cases. It showed. They popped case names back and forth the way most Americans mention celebrity names. In one case, I think it was Justice Ginsburg, asked about a particular case she thought relevant, and the lawyer apparently had not done his homework. At least he evaded the question, twice. Otherwise everybody mostly cited particulars from the cases like they knew them from memory.
It was not each lawyer presenting his case and the justices politely listening. They constantly interrupted with questions. Each lawyer had maybe 40 or 50 minutes of interrupted Q&A, and then he was done. They watched their time, and if they wanted to make a particular point before their time ran out, they stopped whatever they were saying and made their next point. They said so.
There were three days, two hours each day, I guess the Justices use the rest of the time becoming familiar with the next hearing. When you are the top of the food chain, you can set any hours you like, sort of like Congress continually raising their own salaries. Real people running real businesses and organizations need to spend the time to stay on top of the competition. Otherwise they don't.
Anyway, Monday they argued whether the Court should be hearing the case at this time at all. The government Solicitor General and the lawyer for the States both were arguing for hearing it now. Since Tuesday and Wednesday they actually presented their cases, I guess the Court essentially agreed. I don't know who it was arguing for delay, the transcripts only show it was a court-appointed attorney for an amicus curiae filed by some third party. The guy didn't do very well. Maybe it was like high-school debate contests, where you have to be prepared to argue either for or against a proposition at the flip of a coin, nevermind what you personally believe. The Solicitor General and the lawyer for the States also bumbled a lot, but you expect a certain amount of incompetence in the government. It comes with the territory. On the third day I'm guessing it was the lawyer for the NFIB (National Federation of Independent Business, which joined the majority of States in suing against ObamaCare) who did the presentation, and he seemed rather more on top of things.
On Monday the Solicitor General argued that ObamaCare imposed a penalty, not a tax, so the laws preventing the courts from imposing an injunction against the collection of taxes until after they had been paid ("pay first, litigate later") did not apply. On Tuesday the same Solicitor General argued that ObamaCare was a tax, so it came under the general authority of Congress to levy taxation. It's a fine example of Your Tax Dollars At Work. What really happened is that it is in fact a tax, but they didn't want to say so when Congress was voting on it, because Obama had promised not to raise taxes on middle and low-income people. Of course all his campaign promises were lies, but politicians try not to be so blatant about it.
The defining case law -- if the Supreme Court were concerned about precendent or law, which mostly they are not -- is an obscure case that came before the Court 70 years ago, Wickard v. Filburn, which held that Congress has the power to legislate (and the government has the power to enforce) anything it wants for any purpose at all that might conceivably be remotely connected to interstate commerce, no matter how tenuous the link. Basically, Roscoe Filburn was growing wheat to feed his own chickens. It never left the farm. The government said, no, you can't do that, you must destroy the wheat and buy wheat on the open market (plus pay a fine), and the Court agreed. Roscoe changed his name, sold the family farm to a developer (it's now part of Dayton, Ohio), and the entire family left the farming business. The King can do that to people. They can make you buy tea and pay a 1% (now much higher) tax on it. In 1776 the Americans disagreed, but that was then, this is now. We have a new King, who wears nine black robes, and we cannot throw the King's tea into the harbor without paying the tax.
Part of the argument on Tuesday revolved around whether ObamaCare does in fact affect interstate commerce. If Roscoe Filburn could lose that one on wheat that never left his own farm, there are no limits. In fact Roscoe barely owned his own farm, which could be taken away from him at any time for any reason, as the court determined 7 years ago in Kelo v. New London (but not cited in the hearings this week).
Wednesday the arguments focussed on whether the Court should take down the whole law, or simply invalidate the individual mandate, which presumably would be decided on the basis of Tuesday's arguments. Paul Clement, attorney for the NFIB, made a moral case that if the penalty is overruled as an unconstitutional tax, but the mandate is left in place, then a person who refused to buy health insurance would be breaking the law even if the government could not inflict on him any penalties. On behalf of the States, he added that they have standing in this issue because they would be burdened by people enrolling in Medicaid who would not otherwise do so. "Standing" is the American legal principle that you cannot bring suit unless losing (or failing to sue) costs you something. I think it was an atheist in California who tried to sue to have the Pledge of Allegiance dropped from school requirements, and lost because he personally had no standing (he was not in school, so the requirement cost him nothing).
I was disappointed that nobody made the case that Obama and ObamaCare are tearing down the only "Wall of Separation between Church & State" that Thomas Jefferson ever imagined in his 1802 letter to the Danbury Baptist Association, in which the First Amendment explicitly prohibits Congress and the USA government from imposing on religious organizations what their definition of religion is permitted to be. ObamaCare has a religious exemption, but it only applies to those religions that the law defines as applicable. Seeing his assault on churches unchallenged, Obama this year further restricted the definition of religious exemption in what employers must pay for -- and even those not affected are now alarmed. Obama is clearly setting up an establishment of religion, whereby people are punished (by penalties, fines and excess taxation) for not being members of his established church(es) despite that their reasons for earning those fines are strictly religious in nature, that is, they can be argued strictly from the Bible. I wanted to file an amicus myself on the topic, but I don't (yet) have standing, and if the current case is won for sanity, I won't need to.
The Court can do anything they want to, but according to Suszek
in "More than Twenty Cents" four Justices are mindless left-wing bigots
(not his words) who will vote to support ObamaCare irrespective of the
facts, one will vote to throw it out for the same reasons or lack thereof,
and four Justices will earn their salaries by actually giving some thought
to the question. The left-wing Justices tended to grill the opponents of
ObamaCare, and the right-wing Justices tended to grill the government supporter.
They all beat up on the guy who wanted it postponed, so I think we can
expect a decision this year. After reading Wickard I'm much less confident
in what last year was called "Roberts' Revenge" (that the Court would throw
it out) after Obama dissed the Chief Justice in his State of the Union.
The Court does not seem to imagine themselves as bound by law or justice
or even principles, but only politics. I'm glad it's not my job.
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