Rectal Myopia

Greg Sargent:

How did legal observers and Obamacare backers get it so wrong?

Many people have blamed Obama Solicitor General Donald Verrilli’s poor defense of the law for the sudden jeopardy Obamacare finds itself in, and there’s no denying he was unprepared to answer questions that we’ve known for months would be central to the case.

But there’s another explanation for the botched prediction: Simply put, legal observers of all stripes, and Obamacare’s proponents, including those in the administration, badly misjudged, and were too overconfident about, the tone, attitude and approach that the court’s conservative bloc, particularly Justice Scalia, would take towards the administration’s arguments.

Keep in mind: Many observers, Obama officials included, spent weeks treating Scalia like a potential swing vote on the case. Lawyers defending the law wrote some of their briefs and opinions with an eye towards persuading Scalia. They consciously invoked Scalia’s own words from a 2005 opinion affirming Congress’s power to control local medical marijuana in hopes it signaled he might be open to the administration’s defense of the individual mandate.

This now looks like a terrible misjudgment. During oral arguments this week, Scalia invoked the broccoli argument to question the goverment’s case. He mocked the government’s position with a reference to the “cornhusker kickback,” even though that’s not in the law. As Fried notes, this language is straight out of the Tea Party guerrilla manual that was written during the battle to prevent Obamacare from becoming law in the first place.

All of which is to say that the law’s proponents were badly caught off guard by the depth of the conservative bloc’s apparent hostility towards the law and its willingness to embrace the hard right’s arguments against its constitutionality. They didn’t anticipate that this could shape up as an ideological death struggle over the heart and soul of the Obama presidency, which, as E.J. Dionne notes today, is exactly what it has become.

Gee Greg, I saw this trainwreck coming a long time ago. Some of us didn’t have our heads up our own asses. This is what happens when you get high on your own Koolaid.

Let’s forget for a minute that Obamacare is a bad law. It’s already unpopular and it hasn’t even taken effect. Let’s look at the constitutional argument.

The U.S. Constitution created a government with enumerated powers. Any powers not enumerated in the document are reserved to the states or the people.

Obamacare is an unprecedented expansion of congressional power through the Commerce Clause. It requires people to purchase health care insurance from private companies. Supporters of Obamacare think the Necessary and Proper Clause allows congress to make people buy health insurance whether they want to or not.

If they can do that, what is the outer limit of congressional power? Can they order you to buy broccoli too?

Maybe you Journolistas should have fought for Single Payer instead of selling us out for the Public Option that we never got anyway.


One of these things is not like the others

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97 Responses to Rectal Myopia

  1. crawdad says:

    I like how they blame the tea party. Digby is at it too.

    I’m willing to consider the idea that the Obama administration would be willing to do deficit cutting to benefit the 1% or that they refused to jail corrupt bankers because they were protecting the elites. But tanking your own signature legislation (that happens to benefit insurance companies?) None of the people at the top of the heap in the Democratic Party will ever have to worry about money on a personal basis, certainly not the president himself. So you’d have to believe that he is some kind of 1% martyr to think he would destroy his own legacy simply in order to help out the ruling class.

    No, I don’t believe it. Sure, they may be corrupt whores for money for all I know, but that just isn’t adequate to explain this one. They really were that naive. In fact, my current belief is that the administration’s overriding problem is exactly what it seems to be — they constantly overestimate their own abilities and underestimate the opposition’s. Case in point:

    Rep. Marion Berry, D-Ark., fears that these midterm elections are going to go the way of the 1994 midterms, when Democrats lost control of the House after a failed health care reform effort.

    But, Berry told the Arkansas Democrat Gazette, the White House does not share his concerns.

    “They just don’t seem to give it any credibility at all,” Berry said. “They just kept telling us how good it was going to be. The president himself, when that was brought up in one group, said, ‘Well, the big difference here and in ’94 was you’ve got me.’

    No, this isn’t about corruption, it’s about believing your own hype instead of believing your eyes. The astonishing thing is that it’s continued even to this week. Thinking Antonin Scalia would vote to uphold Obamacare is simply delusional.

  2. driguana says:

    …but there’s no decision yet….in this country who knows what will happen….

    • Oswald says:

      Two years ago they were certain that SCOTUS approval of Obamacare was a gimme. People tried to tell them but they wouldn’t listen.

  3. T says:

    Yes, and so many of the Obama-istas were quick to compare the insurance bill with medicare and other real and valuable public programs.

    The are not the same (as your cartoon suggests). What the insurance bill is closer to is social security privatization. With any luck, if SS privatization ever faces a SC challenge it will see the same fate for the same reasons.

  4. myiq2xu says:

    I was writing another post when I saw this and just had to react. Even if you think Obamacare is a great thing it was obvious that this day was coming.

  5. WMCB says:

    Great piece, myiq. Another good article on this phenomena is here:

    The author’s premise is that it’s not that Liberals couldn’t see this coming. It’s that their ideology exists in such a bubble that it is inconceivable to them that actual, real, factual, logical arguments exist that challenge their idea of what is “good”. They spent 2 years of, rather than addressing the conservative arguments against Obamacare and finding a way to counter them, merely laughing and snickering and dismissing them as the backward rantings of neanderthals.

    In my lifetime, I have seen Liberalism go from a school of thought that welcomed and sharpened itself on honest and robust debate, to a clique of self-important kewl kids who don’t bother to argue a damn thing – just attack any who disagree as Teh Stoooopid Selfish Racists and sing “la la la we can’t hear you”.

    It’s that parochial self-absorbed smugness that is coming back to bite them in the ass. Their shock at what happened in the oral arguments is genuine. It never occurred to them that people who disagree with them have brains and logical arguments, too. They’ve been taught that this isn’t possible, and it’s made them soft.

    • WMCB says:

      Their preparation for the inevitable challenge to the bill can be summed up thusly:

      “Are you serious? Are you serious?”


      • myiq2xu says:

        “I was appalled to see that at least a couple of them were repeating the most tendentious of the Tea Party type arguments,” Fried said. “I even heard about broccoli. The whole broccoli argument is beneath contempt. To hear it come from the bench was depressing.”

        The Obot counter to the broccoli argument:

        “Health care is different.”

        • WMCB says:

          Yep. And if you listened to or read the transcripts of the oral arguments, the justices gave the govt every opportunity, and even pushed them to explain how it’s different from every single other market in existence. They couldn’t. They seemed, in fact, disconcerted that they might be asked that.

          Look, your position on anything may be right or wrong. But one thing is certain, you don’t win the argument if your response to challenge is “you’re stupid, you’re a bad human being, go away, you depress me.”

    • votermom says:

      As epitomized by Pelosi’s “Are you serious?”

      Edit – You beat me to it. Jinx!

    • Lola-at-Large says:

      HONK! This is exactly right and the number 1 reason I am no longer a Democrat (see pic below). My ideology has to accommodate my thinking, not the other way around.

      • Lulu says:

        If I have to put my brain on idle to be a Democrat, I will have to pass. It did not used to be this way.

    • blowme0bama says:

      “Shutup!”, they explained.

    • r u reddy says:

      “Hard” liberals wanted Canadian-style Single Payer. “Soft” liberals wanted Personal Medicare Buy-In at the very least, also called “the Robust Public Option”. What kind of “liberal” ever even wanted a Forced Mandate to have to buy private for-profit insurance from the private plan racketeers of Big Insura?

      • Oswald says:

        A latte/limousine liberal who never had to worry about how to pay for health care (or choose between paying rent, buying food or paying insurance premiums.) – i.e a progressive.

  6. elliesmom2 says:

    If the Supreme Court decides that the bill is not severable and knocks down the whole thing, will it take the federal student loan provisions down, too? I assume it would since the federal takeover of the student loan business was slipped into Obamacare.

    • votermom says:

      Good point – one would assume they would have to reject the whole bill.

      • Lulu says:

        If the mandate is struck, but the rest of it stands, the insurance industry and other health related corporations will murder (figuratively of course) the Democrats. The deal was the mandate with captured customers with IRS doing the enforcement before the regulation and other goodies would be tolerated. It is a package deal.

  7. Lola-at-Large says:

    My list is actually much longer, but I thought these were the most important points.


  8. Lola-at-Large says:

    I’m in modland for posting a pic and a link. Can someone please fish me out? Thanks!

  9. myiq2xu says:

    Morning Jay:

    The problem for the left is that they do not have a lot of interaction with conservatives, whose intellects are often disparaged, ideas are openly mocked, and intentions regularly questioned. Conservative ideas rarely make it onto the pages of most middle- and high-brow publications of news and opinion the left frequents. So, liberals regularly find themselves surprised when their ideas face pushback.

    • myiq2xu says:

      It’s like when Lambert starts whinging about “right-wing tropes.”

      Okay, it’s a right-wing trope. But is it accurate?

      • Lola-at-Large says:

        Exactly. I saw that in a comment at Violet’s this morning. “Right-wing trope” is just code for cooties.

      • WMCB says:

        Yep. I wil have a robust argument with anyone – Left, Right, or Center, if they will engage me on the actual argument at hand.

        There do exist people who merely spout rightwing tropes. Or leftwing tropes. People who never even think about what they are saying. They exist on both sides. There also exist on both sides intelligent persons who can logically back up their positions, admit to weaknesses in their own ideology, and explain why they think the benefits are worth those flaws.

        Somehow, we’ve gotten away from reason in politics. The first reaction, rather than examining whether an argument has any merit, is to first discern who is making it, and judge it on that basis. It’s insane, and it happens on both sides. However, I must admit that it has happened a lot more on the Left over the past decade, and it’s getting worse.

        If Liberals don’t figure out how to once again argue honestly with people who actually think differently from them, and stop this stupid reliance on shunning and socially ridiculing and “pshaw-ing”, they are going to get their lunch eaten. No matter how superior their arguments sound to themselves inside the echo chamber, they will continue to get the shit shocked out of them every time they venture out of it.

        • Lulu says:

          They ran us all off! Donna B and the other hacks said they didn’t need or want us. They want to separate themselves from the masses and are then surprised when someone else out of their self congratulating group disagrees, fights back or beats them fair and square. Rank and file Democrats dealt with rank and file Republicans for decades until they decided they did not need or want us. They are idiots practicing an extreme form of group-think.

    • yttik says:

      Some Ninja somewhere said the most important skill was to learn to respect your enemy. Dems/progressives often lose the moral upper hand because they always fail to have any respect for their alleged enemy.

      • WMCB says:

        Some conservatives are talking about this whole thing at AoS, and one had this to say:

        I used to make my legal writing students do the standard write a brief advocating position a and then the next week write a brief advocating position b which was directly in opposition to position a project. When they’d whine about how could they dooooo that, it’s too haaaaarrrrrddddd I would tell them that there is no possible way you can know your own arguments until you know the other side’s. That’s logical reasoning 101 stuff.

        I’ve always wondered how the hell those on the Left can think that they are Deep Thinkers when they refuse to actually think.

        The Left is getting their ass kicked, because the Right understands their reasoning a lot more than vice versa. The Left won’t deign to understand those icky cretins. Any lawyer or military strategist could tell you that’s very, very stupid, and a recipe for failure.

        • myiq2xu says:

          In law school there is a class called moot court. You have to argue one side of a case and then turn around and argue the other.

          If there weren’t two sides it wouldn’t be an issue.

    • Three Wickets says:

      Hmm, not sure about that. With or without the public option, ACA requires the individual mandate. Without the mandate it all comes tumbling down, in which case a faster path to a predominantly single payer system may become more likely…expanded medicaid that could eventually morph into medicare-for-all, bigger role for IPAB, higher general taxes, etc. Related on taxes, M. Bloomberg had an interesting piece this morning in the WSJ calling for the scheduled expiration of all Bush tax cuts at the end of the year. Neither party has gone on record with that position as far as I know. Taxes will have to be raised in the next administration, the Fed won’t be able to finance deficits much longer. Any candidate who says otherwise is being disingenuous or stupid. 🙂

  10. Erin says:

    I don’t know about all of you, but I am sick to death of the lame argument when one of the serious people fails to see the friggin obvious that there was no way anyone else could see it coming. I’ve been hearing that BS for every failure since 9-11-01. It was BS then and it’s BS now. If your vision is so bad you regularly miss the important stuff – you shouldn’t be in a leadership position. Get out of the way and make room for someone who’s vision is functioning properly.

  11. WMCB says:

    I swear to god I had not yet read this when I posted my comments above. Gail Collins at the NYT:

    I can’t believe this might be overturned. How can this law not be constitutional? The other alternatives are forcing taxpayers to cover the cost of the care in emergency rooms for people who don’t want to pay for their insurance, even if they can, or letting human beings just die on the side of the road. I can’t believe fiscal conservatives think either of those options is a good idea.Really, I have my hands over my ears. Not listening.

    This is the idiocy of the Left that people are getting very sick of. She asks in wide-eyed bewilderment, “How can this not be constitutional?”, but then offers zero, zip nada argument for why it is. Her position seems to be “If it helps people, or solves a problem, or if the alternative is bad, then it’s constitutional.”

    No, it’s not. If the only limiting factor or guiding principle of the federal government is “if it’s for their own good, it’s fine”, then we no longer live in the United States of America. I shouted that from the fucking rooftops when the constitution was shredded for our safety from terrorists, and I’ll continue to shout it when others want to shred it to keep us safe from lack of healthcare. I want healthcare for all. And there are ways to get it without stomping all over individual rights.

    Really, I have my hands over my ears. Not listening.

    Pathetic. And you call them the anti-intellectuals?

    • myiq2xu says:

      More than once we’ve amended the constitution to help people.

      • WMCB says:

        Yep. And I’m not opposed to amending it again. But you have to convince the whole country for that, and neither party seems very good at convincing anymore.

        If something is a serious enough problem that the ONLY way to solve it is to go outside the bounds of the constitution, then convince the public and amend the thing. You don’t just ignore it.

        But healthcare can be solved within the bounds, IMO.

    • yttik says:

      “Really, I have my hands over my ears. Not listening.”

      That pretty much sums up all the problems with Obamacare from the very start, doesn’t it?? All people, from Romney fans to genuine liberals, had a lot to say about how to make healthcare available to all, including ideas like single payer and medicare expansions. Nobody wanted to hear any of it, Obama and the Dems were on a steamroll to force their ideas down our throats and anyone who had anything to say was told to STFU.

      I remember one townhall meeting where my Dem Rep, surrounded by protection from his own constituents, flat out told this older woman to sit down and shut up when she asked how it would impact our state, a state that used to have sliding fee insurance available for everyone until the “reform” happened.

      • WMCB says:

        Yep. And it’s shit like that that gives conservatives ammunition. They say, “Liberals want you to sit down and shut up ’cause they know what’s good for you.” And Dems say, “How ridiculous! Whatever gave you that idea??”

        The Left, under Obama, is reinforcing every damn bad thing ever said about them. And when they get called on it, the answer is yet another “STFU!”

    • DeniseVB says:

      People aren’t going to be left on the side of the road to die, it’s a law that everyone gets seen and treated in any ER.

      If I recall, wasn’t it Mrs. Obama who had that cushy hospital job referring poor people to “other” clinics ?

    • Lola-at-Large says:

      Not to mention the false equivalence. Those aren’t the only two options. There’s also a public option, single payer, and full-blown socialized medicine, just to name a few.

  12. Lulu says:

    I may be overly optimistic, but I think we may be seeing the light bulbs flickering on for the kool aid drinkers. The first reaction of the snookered is outrage, then how could this have happened, followed by I will get them, and finally what a dumbass I have been.

    The Democrats lead by the WH told kool aid partakers that everything was fine and dandy. This health care deal with the devil was the best Obama the Great could get for them and it was certainly constitutional if a constitutional law professor like Obama had done the deal. It was all a lie. The fact that single payer would have met constitutional standards should make them all go into social exile.

  13. DeniseVB says:

    Here’s a doctor who doesn’t accept insurance and it saves his practice 250k a year. Good analogy to car insurance, pay for routine maintenance and just take out catastrophic insurance for the serious stuff.

    • WMCB says:

      Yep. I personally think that the whole idea of “insurance” for routine healthcare is bogus. Insurance, by definition, is a lot of people paying a little bit every month so that when something unusual and unforeseen happens, that catastrophic expense is covered. It’s a crappy model to use for routine, expected expenses – because you CANNOT cover that without insanely high premiums. What would car insurance premiums be if routine maintenance and your gas usage was covered?

      IMO, the cost of medical care would be much lower now if we’d never adopted the insurance model for routine care. If we’d left routine care as out-of-pocket, used insurance for catastrophic coverage, and then offered programs like Medicaid for those financially unable to get routine care out-of-pocket.

      Unfortunately, it would be hard now to dismantle.

      • DandyTiger says:

        That’s sort of the direction many policies are going with 5K, 10K, even 20K+ deductibles. Go for the 20K deductible and your monthly is only $800. Whooptydo!

        • WMCB says:

          Yeah, but that’s not the same. You already have the higher prices of care and the insurance company involvement – so you can’t turn back the clock and make it have never happened.

        • yttik says:

          We already have too much “health” insurance in this country and not enough benefits. For example, people have workman’s comp through their employers in case they’re injured on the job, medical coverage on their car insurance in case they’re injured in a car (or injure somebody else,) crime victims compensation insurance in case somebody injures you while committing a crime, and homeowners insurance in case somebody falls off your deck and needs medical care.

          We’re pretty close to dirt poor, but we added up all our insurance “benefits” and it’s almost two million dollars. So we have two million dollars of coverage….and no health insurance. It’s kind of silly.

      • votermom says:

        I agree with that car insurance model. But it’s not feasible now because the price of regular “maintenance” care is so inflated also because of the insurance model.

        • WMCB says:

          Yep. If car insurance had been covering oil changes for 50 years, oil changes would now be $300.

        • Lola-at-Large says:

          It can be changed. Maybe not without a lot of pain on the part of people who work in the insurance industry, but so what? Look at the pain we’re in now already because the job market is so unstable. Some facilities are already adopting this model. I get a discount at my doctor for paying cash up front in full for each visit. It’s a considerable discount.

        • Lola-at-Large says:

          And it should be a steep discount, FTR, because my care doesn’t come with endless calls to insurance companies and reams of paperwork filed. No prior approval needed, just my consent.

        • votermom says:

          So around 8 yrs ago or so ago an elderly relative from abroad came for an extended visit and she seemed to be coming down with something so we wanted her to see a doctor (no traveler’s insurance). I brought her to our family dr and the doc said, ok, no problem, I can give a price break for a first visit. Just $100.
          This was back when my co-pay was $5.
          All the doc did was check her bp, vitals, rec (not give) what vitamins and shots might be good, and told her she probably was fighting off a cold. Basically a well-visit.

        • Lola-at-Large says:

          That sounds like a shitty doctor. The insured pay a $20 copay at my docs office, and the insurance covers the other $100, plus any labs, etc. I do pay for my own labs, but I also only pay $60 for an office visit because I pay up front and in full each time. Of course, I also don’t get a lot of needless extraneous labs, either, because I am in control of consenting to them, not my insurance.

          Of course the folks who pay for insurance are also paying premiums of $200-$500 a month based on the size of their families. Our family’s entire medical costs for last year, including scripts and vitamins? $412.

        • votermom says:

          It’s actually a good doctor, but not so good business person, imo.
          Thank ghu now a walk-in clinic opened up nearby where they take all sorts of payments, no insurance needed.

        • Erica says:

          In my area, we are not allowed by insurers (via contracts that are take-it-or-leave-it) to offer discounts to cash pay patients. Neither are we allowed by Medi-Cal to let Medi-Cal patients pay for services they want if Medi-Cal doesn’t cover them. We could give the services away for free, but we already do that all day long (free phone consults, emails, prescription refills, referrals to specialists, school forms, camp forms, etc,etc.) It’s gotten pretty crazy for most of us in primary care, and I don’t see 0care making anything better.

  14. votermom says:

    OT. Fascinating article (via hotair) on Afghan girls passing as boys:

  15. DandyTiger says:

    Spike Lee settles case out of court with couple he almost got killed.

  16. DandyTiger says:

    iowahawkblog: Nobody expects the American Constitution! #Our2chiefweaponsarefearandsupriseandruthlessefficiency

    • Lola-at-Large says:

      I saw that and literally snorted beer through my nose. Normally I wouldn’t mind and would thank the Hawk for the pleasure, but it WAS SN Torpedo IPA, and that shit ain’t cheap. Plus it’s strong enough to be caustic to tender nasal tissue…

  17. WMCB says:

    From a commenter at Hillaryis44 – LMAO!

    I have also immensely enjoyed the WH, press, and assorted legal talking heads surprise that the 26 hillbilly states hired lawyers that can read and write and even wear shoes on weekdays. Who knew?


    • Lola-at-Large says:

      Brillant….I totally wanna post that on FB

      • Lola-at-Large says:

        *Brilliant, even. I DID mention I was drinking, right?

        • WMCB says:

          I want a drink right now, but have to do some damn billing work on the ‘puter, so need to stay alert, lest I transpose SS#’s or charge an 85 year old grandpa for admission to the maternity floor. Have one for me.

        • Lola-at-Large says:

          Done. We’ll call the beer I’m drinking now for you, since another would put me up past bedtime and prolly make me puke (I confess I am a total lightweight and have been my entire life. I appreciate the cost-saving feature, ftr)

        • myiq2xu says:

          I hate plastic booze bottles.

          There is something satisfying about the sound of breaking glass when you hurl the empties in a drunken rage.

  18. gram cracker says:

    Sounds like the guvmint lawyer needed a drink too.

  19. Lulu says:
    “Now this week the Supreme Court arguments on ObamaCare, which have made that law look so hollow, so careless, that it amounts to a characterological indictment of the administration. The constitutional law professor from the University of Chicago didn’t notice the centerpiece of his agenda was not constitutional? How did that happen?”
    While this is written by Peggy Noonan, shudder, it is what all the insiders are thinking. How did it happen? How about you were a schmuck to believe him in the first place. Or he isn’t a genius constitutional law professor. Or about a hundred other reasons that you were too lazy to investigate. I am so sad that Peggy Noonan was snookered.

  20. lorac says:

    In my lifetime, I have seen Liberalism go from a school of thought that welcomed and sharpened itself on honest and robust debate, to a clique of self-important kewl kids who don’t bother to argue a damn thing – just attack any who disagree as Teh Stoooopid Selfish Racists and sing “la la la we can’t hear you”

    Well said.

    • DandyTiger says:

      WMCB has this infuriating way of making sense like that. 🙂

    • myiq2xu says:

      100 years ago there were progressive academics who were writing scholarly treatises on how the white race was superior to the lesser races and how white people had a duty to control and govern the rest of the world. These ideas lingered on here and in Europe until the Nazis gave racism a bad name.

      • votermom says:

        You’re talking about Manifest Destiny?

        I’ve known about that justification for USA imperialism, but I only found out now that it was it was a Dem, er “blogger” that came up with the phrase.'Sullivan

      • lovelalola says:

        My guess is eugenics. Harvard was big on and so was everyone else, from Teddy Roosevelt on down. Of course, only Margaret Sanger is held accountable for believing what most were believing and promoting at the time.

  21. Lulu says:

    I quite like Michael Collins take on Obama’s health care plan and the Supreme Court. The ending is especially nice: “So when I hear the boo-hooing about those enablers of corporate greed, the big bad Supreme Court, taking away Obama’s health care plan, my response is a pox on both of their houses.”

    • threewickets says:

      Interesting. Saw that private insurers stock prices fell early in the week when the individual mandate looked like it was in trouble, then prices bounced back when the whole ACA looked like it could go down. Whatever happens, premiums will probably keep going up since higher premiums are a function of the rising cost of actual care even more than insurance dynamics.

  22. Pingback: Who, What, Why: The Most Staggering Argument Made This Week In The Supreme Court — Hillary Is 44

  23. gxm17 says:

    Ya know, it’s a sad day in Mudville when a legal dolt like myself could see this coming but the 11-dimensional chess players were blindsided. Thank you, oh brilliant ones. Whatever would we stupid proles do without you.

  24. r u reddy says:

    Maybe my distaste for the Forced Mandate aspect of the Baucus-Obama Romneycare Law blinds me to all the other wonderful parts of that law. But I hope the Court strikes down the Forced Mandate, even if that kills every other part of the law liked dominoes falling into a Black Hole.

    My biggest fear (and prediction) remains that the Court will find a way to rule the Forced Mandate to be constitutional. I hope I’m wrong.

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