{"id":16173,"date":"2012-03-26T16:07:39","date_gmt":"2012-03-26T16:07:39","guid":{"rendered":""},"modified":"2012-03-26T16:07:39","modified_gmt":"2012-03-26T16:07:39","slug":"making_the_complex_understandable_obamacare_arguments_at_supreme_court","status":"publish","type":"post","link":"https:\/\/admin.rushlimbaugh.com\/daily\/2012\/03\/26\/making_the_complex_understandable_obamacare_arguments_at_supreme_court\/","title":{"rendered":"Making the Complex Understandable: Obamacare Arguments at Supreme Court"},"content":{"rendered":"

RUSH: Six hours of oral arguments before the US Supreme Court<\/a> began today on Obamacare. It can be somewhat confusing if you do not have me to make the complex understandable. The first thing that happened today was basically an argument, a hearing on whether or not the court even has any say-so in this. This is at the court\u2019s request, and it\u2019s all about the fact of whether or not the mandate could be called a “tax.” Now, the regime is in a precarious position on this no matter how the ruling goes down, and I just got a note that I don\u2019t quite understand. I mean, literally as the theme of the program was playing, this note arrived.<\/p>\n

I\u2019m being told that it looks like the Supreme Court will not invoke the whole concept of this being a tax, and therefore hear the arguments. My note is, “Even before the court reaches that subject it must broach the issue of the Anti-Injunction Act. This is a 145-year-old federal tax law which could bar the court from even hearing a challenge to the individual mandate.” Now, I\u2019m told here that it looks like the Supreme Court will not invoke this which means they\u2019ll go ahead and hear it. What is this about? The Heritage Foundation has a great explanation of this today, and the first thing on the agenda was to try to determine whether or not the Obamacare<\/a> mandate is a tax.<\/line><\/p>\n

And if it is a tax, then the regime can go ahead and say, “It\u2019s not a mandate. We\u2019re levying a tax on people. We have the authority, and therefore everything\u2019s hunky-dory.” Well, fine and dandy as far as that goes. But if that were to end up being the ruling, then the regime has a challenging political problem, and that is: Obama promising all this time that nobody\u2019s taxes would go up and nobody\u2019s premiums would go up, and here they\u2019ve just argued before the court that it\u2019s a tax and they have every right to levy it. So therefore the Republicans have a built-in campaign issue regarding this. I\u2019m told the court\u2019s not gonna invoke this, but we\u2019ll see. <\/p>\n

As I say, I just had that note handed to me and I\u2019m probably remiss in even mentioning that to you until I can confirm it today. So the first order of business was the court determining whether or not the individual mandate qualifies as a tax. And, if it does qualify as a tax, then under the provisions of the aforementioned Tax Anti-Injunction Act, TAIA, the mandate can\u2019t be challenged in court until it\u2019s actually been collected. Meaning, you can\u2019t sue for being taxed before you\u2019ve been taxed. See, if the court had determined that this is a tax, then they would have been saying, “Get out of here, everybody; there\u2019s no case,” and that\u2019s what I\u2019m told that they are not going to invoke. <\/p>\n

That would take the merits of the case off the table, and the Heritage Foundation really goes into this at great length here. But as I say, the regime would not win in this case. I think probably on the whole notion of a mandate, they\u2019re on thin ice. I find it fascinating (I\u2019m sure you do, too) that all of the news reporting on this is focusing on whether or not a conservative justice will change his thinking on this. Implicit in that is that the four liberal justices are already etched in stone. They\u2019re not open-minded about anything, and they\u2019re going to vote a certain way. It\u2019s a fait accompli. And it probably is, but it\u2019s fascinating to me that the media has all this focus on the conservatives, and therefore, “Can we change their minds?”<\/p>\n

They focus on, “Whether we can pressure them, whether we can force Anthony Kennedy or Scalia or maybe Thomas or Alito or even Chief Justice Roberts to see this the ‘right\u2019 way.” So the arguments are already over for today. The court would have to wait until 2015 to hear this case if they had decided to accept the argument that Obamacare is a tax. The polling data on this, ladies and gentlemen, continues to be bad for the administration. Seventy-two percent of Americans see the individual mandate as unconstitutional, and 72% believe Obamacare will make things worse or won\u2019t help. This is Gallup information. “Americans overwhelmingly believe the individual mandate, as it\u2019s often called, is unconstitutional. The margin is 72% to 20%. <\/line><\/p>\n

“Even a majority of Democrats believe that that provision is unconstitutional,” USA Today\/Gallup found. “Americans are less optimistic that the law will improve their family\u2019s health care situation in the long run; 38% expect the law to make their situation worse compared with 24%, who say that it would make it better.” From the get-go, ever since this law was passed, the polling on this has been overwhelmingly against Obamacare. Overwhelmingly. It\u2019s been in the high fifties to the mid-sixties, and like in this Gallup\/USA Today poll it even got up into the low seventies (that was back in February) the number of people who find it unconstitutional and don\u2019t want any part of it. And this should be reassuring in one sense, and that is where the public\u2019s mind is on this. <\/p>\n

Now, as we know, we have an administration and a Democrat Party ruling against and governing against the will of the people. In this case a public opinion poll won\u2019t matter to them, even in an election year, so much. But you can take some comfort in the fact that a vast majority of the American people don\u2019t want this, and the numbers of people who find it unconstitutional and therefore undesirable is increasing as information about the law leaks out, and there have been sporadic implementations of the law which are negatively impacting people. And even though the administration likes to say, as they have on a couple of occasions, that somebody in the hospital\u2019s life was saved because of Obamacare, nobody believes that.<\/p>\n

It\u2019s too outrageous a claim, especially when it\u2019s made about one or two patients. It\u2019s purely political. And health care to most people, at the end of the day, is not political, and they don\u2019t want it to be. And yet they realize in order to repeal this and roll it back, they\u2019re going to have to be involved in it politically. Now, on CBS This Morning today, former Vermont governor Howard Dean broke with the Democrat Party in terms of how he thinks the Supreme Court will view the law. Charlie Rose asked him if he thought the individual mandate would ultimately be declared unconstitutional, and Howard Dean said, “I actually think that\u2019s what they\u2019re most likely to do before, of course, we\u2019ve heard any arguments.”<\/p>\n

He predicted the Supreme Court will declare the individual mandate unconstitutional. So just to review here: Six hours of oral argument today (and it\u2019s already over) deciding: Is the mandate a tax? Now, what you had was the administration\u2019s lawyers and the 26 state challengers opposing the argument from an outside attorney that the 1867 Anti-Injunction Act (which prohibits anyone from challenging a tax in court before it\u2019s been enforced or collected) prevents the court from deciding on health care legality before 2015. They had to do that first. There was some possibility that the court might decide that it was a tax and just punt. <\/line><\/p>\n

I mean, these guys read the election results, too, and they read the opinion pages. They read the papers. <\/p>\n

They\u2019re like everybody else. So when they have a chance to punt, you never know. They might take it. But they didn\u2019t, from what I\u2019m told, in this case. “The National Federation of Independent Business and the 26 states argued that the health care mandate penalty is not a tax, and therefore does not fall under the Anti-Injunction Act. The Justice Department, interestingly, was also going to oppose it, but its argument was much more complex since they are claiming that the mandate is a kind of a tax.” The regime, when you boil it all down here, are really on thin ice. It\u2019s the politics of this that gives them a chance. If this were a straight-up-and-down review of the law, we wouldn\u2019t even be here and the thing wouldn\u2019t even have been signed into law. But of course that\u2019s not where we are. <\/p>\n

We\u2019re in a purely political world with the Obama administration and the Democrat Party doing everything they can to expand the size, the scope, the power and the reach of the federal government. So tomorrow the mandate will be argued. “Administration lawyers will defend the individual mandate. They will argue that Congress is well within its rights under the Commerce Clause to compel Americans to buy health insurance.” It\u2019s interesting. Grab audio sound bite 28. We\u2019ve played this for you a couple of times in the past. (Well, actually more than that.) When Obama was a candidate, he opposed the mandate that his Justice Department is now up before the Supreme Court in favor of. He opposed it! This is in 2008, February 21st, Austin, Texas, during a Democrat presidential debate, Obama versus Hillary.<\/line>