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Obamacare: Supreme Case of Rock, Paper Scissors

The opinions expressed by columnists are their own and do not necessarily represent the views of

This past week, America was subjected to the high-stakes game of legislative rock paper scissors.  The players to watch on the scissors team were Ruth Bader Ginsburg (played by Ruth Buzzi), Sonia Sotomayor (played by Zoila Chavez), and Elena Kagan (played by Rachel Maddow -- or played by Abby Elliot playing Rachel Maddow).

The question before the Supreme Court is whether Congress has the authority under the Commerce Clause of the US Constitution to order every American to buy a government-approved level of health insurance and to charge a financial penalty to those citizens who do not comply.

When I first heard about the intentions of Obamacare, it sounded like the recurring nightmare of Hillarycare.  Even though President Clinton enjoyed four years of Democratic control in both the House and the Senate, his party was unable to agree on the structure of a government takeover of the medical free market.  The salient intra-party debate was whether the citizens would rebel over Hillary’s task force recommendation for a “single-payer” system.

Twelve years later, Barack Obama was presented with a second opportunity, again with party control of both the House and the Senate, to fundamentally transform the United States of America by taking over its citizens’ health care.  Two big lessons learned from the Clinton attempt were applied this time; getting Congress to develop the legislation (rather than a presidential task force), and postponing the radical single-payer component for adding at a later time.

Obamacare passed two years ago this week.  And Barack Obama will never get that opportunity again.  Either the Supreme Court upholds his dream of utopia this summer, or favorable circumstances will vanish until some moment well beyond George Soros’ lifespan.

The basis for the constitutional objection that was argued before the Supreme Court this week seemed as innocuous as Monica Lewinsky’s blue dress.  What Bill Clinton was doing to the nation at the time was highly inappropriate.  Ironically, he got impeached over doing the same thing to a consenting adult.

Why the objection by two-dozen states to requiring that Americans do what seems like a responsible action -- buying health insurance?  The plaintiff’s strategy makes sense when you realize that Pelosi’s Congress wrote Obamacare without severability.  That is, all or nothing.  The Supreme Court was not afforded the opportunity to reject portions of the bill.  They must call it all constitutional, or send it back to Congress for repair.  And this Congress is not going to spruce it up for resubmission.  The Republicans now control the House and every Republican Representative voted against Obamacare in 2010.

The “swing” justice, Anthony Kennedy asked Solicitor General Donald Verrilli, “Can you create commerce in order to regulate it?”  Beautifully delivered.  Requiring that everyone sign up to a system that the government would then control is exactly the requisite for creating the strongest ties of dependence.

Solicitor General Edwin Kneedler argued desperately for severability hooks that Ginsburg, Sotomayor and Kagan could grab hold of.  While these three were seen marching down Capitol Street in 1972 carrying signs that read, “Keep your laws off my body!”, they now demand that the Obama Administration slather everyone’s bodies in laws.

Kneedler asserted that most of the bill would be acceptable to the court, if they would simply make the effort to pour over Nancy Pelosi’s masterpiece.  But Justice Antonin Scalia came to the nation’s rescue with the wittiest exchange of the session.  “Mr. Kneedler,” he asked, “what happened to the Eighth Amendment? You really want us to go through these 2,700 pages?”

The Eighth Amendment addresses cruel and unusual punishments.

Justices Ruth Bader Ginsburg and Stephen Breyer were augmented with fellow liberal players Sonia Sotomayor in 2009 and Elena Kagan in 2010 who have the specific professional assignments of ensuring that the Obama agenda sticks, regardless of what the framers of the United States Constitution intended for posterity.  In his landmark book, The Tempting of America, Judge Robert Bork wrote, “The abandonment of original understanding in modern times means the transportation into the Constitution of the principles of a liberal culture that cannot achieve those results democratically.”

Selecting justices to the Supreme Court is the greatest impact that a President will have.  Judge Bork adds, “If it continues on this course, law will cease to be what [Oliver Wendell] Holmes named it, the calling for thinkers, and become merely the province of emoters and sensitives.”

I will end with two more quotes from Bork’s book, which I would commend to anyone interested in understanding the Founding Fathers’ notion of the separation of powers:

“The orthodoxy of original understanding, and the political neutrality of judging it requires, are anathema to a liberal culture that for fifty years has won a succession of political victories from the courts and that hopes for more political victories in the future.  The representatives of that culture hate the American orthodoxy because they have moral and political agendas of their own that cannot be found in the Constitution and that no legislature, or at least none whose members wish to be reelected, will enact.  That is why these partisans want judges who will win their victories for them by altering the Constitution.”

“Those who made and endorsed our Constitution knew man’s nature, and it is to their ideas, rather than to the temptations of utopia, that we must ask that our judges adhere.”

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