Thread: It’s the Congress, stupid

The news that the SCOTUS might not rule on the Affordable Care Act until 2016 makes congressional elections much more important than the presidential election. It won’t matter who is in the White House if conservatives do not have a veto-proof majority in both houses. Without super majorities parliamentary shenanigans will give the Democrats the tools they need to stop a repeal bill from even being written.

Voters would be foolish to think any one of the Republican nominees will sign a repeal bill even if one gets to his desk. Does anyone really believe that Mitt Romney would sign such a bill irrespective of what he is saying now? Ditto Gingrich and Santorum. I’m not all that convinced Ron Paul would sign a repeal bill either. Immediate repeal would mean not hiring several million parasites during economic hard times.

Pelosi said 4,000,000 jobs. That’s just for starters if the bill is not repealed. Never mind the fact that they are government jobs. Neither politicians nor the media differentiates between government jobs and private sector jobs.

NOTE: Remember Bill Clinton’s famous campaign slogan in 1992 “It’s the economy, stupid.” Citing the economy is second only to citing “the children” whenever the parasite class wants something. No Administration is going to repeal “jobs.” Why should they when they have the economy as a cover story?

There is one amusing aspect to jobs. Hussein & Company are manipulating unemployment figures hoping to convince the public that unemployment is coming down, while high unemployment offers justification for seating 4 million more parasites at the public trough. I wonder if Hussein sees the irony in his two positions?

Even with a Republican supermajority RINO working with Democrats have the numbers needed to derail repeal legislation —— without a supermajority there is not a chance the Affordable Care Act will be repealed. If it isn’t repealed before 2016 the SCOTUS will not overturn it.

Bottom line: Only fools put their trust in the Court. The court is the enemy of private sector Americans. The growth of the welfare state along with a huge increase in the government’s power over the people since the end of WWII is largely the work of the Supreme Court. Not only the decisions the High Court handed down, but the cases they refused to hear is proof enough. The Court will not overturn a government power grab like the Affordable Care Act when it is so close to permanency.

Sad to say, a substantial number of Americans who never vote suddenly turning out to vote for repeal candidates is the only way I can see repeal happening. If this election is left to the usual division among voters the Affordable Care Act is here to stay.

Also, media is pulling out all stops to keep the public’s attention focused on the presidential race, Iran, Syria, and everything else that can be pumped up to look like Armageddon is just around the corner. Repealing the Affordable Care Act has dropped off the radar screen. Any talk about repealing HillaryCare II would remind Americans that their best hope lies not in the president, but in Congress repealing that tragedy.

Finally, there are times when I pray that I am completely wrong about an issue. This is one of those times. The following article only speculates. Nevertheless, the issue itself coupled with the Court’s track record leave little room for hope.

ObamaCare: Supreme Court may postpone ruling till 2016
By Dean Clancy on February 21, 2012

This morning's newspapers report an ominous development in the ObamaCare litigation, now pending in the U.S. Supreme Court:

The Court posted a seemingly minor but potentially portentous administrative change, which suggests it might postpone delivering a final ruling on the constitutionality of ObamaCare until the middle of 2016!

Specifically, the high Court increased the time it will devote to hearing oral arguments on whether the health care mandate is a tax for purposes of something called the Tax Anti-Injunction Act (26 U.S.C. § 7421(a)).

The historically lengthy oral arguments in the case, HHS v. Florida -- now expanded by 30 minutes to an unprecedented six hours -- are slated to take place late next month. A formal ruling in the case is expected by early July.

But will it be the final ruling? That's now less clear.

First enacted in 1867, the Tax Anti-Injunction Act sweepingly forbids any court from hearing any case in which any person attempts to prevent the assessment or collection of a tax. Once the tax has been assessed and collected, however, a court may hear a case on it.

The ObamaCare mandate is enforced by means of a penalty fine, collected by the IRS. With a few exceptions, this fine will be imposed on every citizen who doesn't check a box on his tax return affirming that he has purchased government-controlled health insurance.

Is the IRS penalty a tax, or not? So far, lower federal courts have come down on both sides of this issue. And for complicated legal reasons, the Obama Administration has actually been taking boths sides on it: in Congress, the President's men say it's not a tax; in court, they say it is.

If the high Court decides the mandate is a tax, it will be a dream come true for the Administration:

∙President Obama faces reelection in November 2012.
∙ObamaCare doesn't go into full operation until January 2014.
∙The first time the IRS can levy the mandate penalty/tax won't be until folks file their tax returns, in mid-April 2015.
∙The slow judicial process will likely delay a final Supreme Court ruling until mid-2016.

Until now, everyone has been assuming the Court will rule on the law's constitutionality in early July, five full months before the 2012 elections.

And we've all been assuming that, however the Court rules, the ruling will provide voters with a critical piece of information: What does the Supreme Court think about ObamaCare's constitutionality?

Alas, today's development calls that assumption into doubt. The Court might punt!

The expanded time given to the Tax Anti-Injunction Act issue suggests two things:

1) The high Court is taking seriously the idea that the mandate is a tax -- the strongest possible basis for finding ObamaCare constitutional.

2) If the Court decides that the mandate is a tax, it may be forced to postpone a ruling on the mandate's constitutionality until after the tax has actually been collected on a citizen -- three years hence.

Today's development is just another reason why we cannot count on the courts to repeal the government takeover of health care. However the Supreme Court finally decides, we citizens must keep fighting to protect our threatened health care liberties in the halls of Congress -- and at the ballot-box.

Dean Clancy is FreedomWorks' Legislative Counsel and Vice President, Health Care Policy

P.S. Last week, we filed a formal legal brief in this important litigation.

http://www.freedomworks.org/blog/dea...pone-ruling-ti

The enclosed commentary by Senator Jeff Sessions carries a bit more weight than does the average voice calling for recusal. Sessions comes by his position honestly because he did not vote to confirm Kagan.

SUGGESTION: Somebody should ask the five RINO ——Senators Olympia Snowe, Susan Collins, Lindsey Graham, the ever-faithful Richard Lugar, and Judd Gregg (retired) —— how they feel about their votes to confirm Kagan now that she is clearly flouting the law by refusing to recuse? See the second paragraph in the article.

Parenthetically, there is no greater travesty than bipartisanship in confirming judges. If there is one Senate vote where senators should unanimously vote their party’s position that vote is to confirm, or not confirm, a nominee.

Finally, whether or not Kagan recuses means nothing if the SCOTUS does not rule on the Affordable Care Act until 2016.

Kagan Must Recuse Herself from Obamacare Case
By Sen. Jeff Sessions
February 23, 2012 3:09 P.M.

As solicitor general of the United States, Justice Elena Kagan served as the head of an office responsible for formulating the Obama administration’s legal defense of its domestic agenda priority — Obamacare. It could be no surprise to President Obama who appointed her to the Supreme Court that any former solicitor general would have many conflicts for years to come. Now, the Court will soon hear a constitutional challenge to the health-care law. Despite mounting evidence of her substantial participation in the administration’s legal defense of that law, she still has not announced whether she will recuse herself from presiding over the case as a justice.

According to Section 455(b)(3) of Title 28 of the U.S. Code, justices must disqualify themselves in cases where they have “served in governmental employment and in such capacity participated as counsel, adviser, or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy.” In United States v. Gipson, the Tenth Circuit held that judges must recuse themselves if they have “previously taken a part, albeit small, in the investigation, preparation, or prosecution of a case.” Other courts have suggested that, merely by virtue of a lawyer’s position as the head of an office during the preparation of a case, he or she is disqualified to sit as a judge on that case. For example, several U.S. Circuit Courts of Appeal have held that U.S. attorneys who later become judges must recuse themselves from any proceeding that had been pending in any way in their offices, even if they were not substantively involved.

Previously undisclosed e-mails that the Justice Department has released pursuant to court order demonstrate Kagan’s direct involvement in the administration’s defense of the president’s health law from the very beginning. In January 2010, she assigned her chief and only political deputy, Neal Katyal, to the matter — the legal equivalent of a firm’s senior partner delegating work to a junior associate. That same month Katyal wrote in an e-mail to the associate attorney general’s office that “Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues.” These actions alone constitute personal participation in the preparation of the case, and that is all §455(b)(3) requires to trigger mandatory recusal.

Kagan herself has admitted that she attended “at least one meeting” in which the case now before the Court was mentioned, but the e-mails show that she also was privy to discussions of the administration’s litigation strategy at least up until the announcement of her nomination on May 10, 2010. On March 18, Katyal e-mailed Deputy Attorney General Tom Perrelli and copied Kagan, discussing in detail and providing an Internet link to a draft complaint in potential litigation. He wrote: “For what it is worth, my advice (I haven’t discussed this with Elena, but am cc’ing her here) would be that we start assembling a response, [material redacted] so that we have it ready to go.” And at least one e-mail suggests that discussions of litigation strategy were deliberately not conducted in written form. On March 21, Katyal e-mailed Kagan to ask whether she would attend a key White House meeting on health-care litigation strategy. Kagan responded: “What’s your phone number?” These actions further support the need for her recusal.

It appears that Kagan and Katyal were cognizant of the recusal issue. On May 17, Katyal forwarded Kagan an e-mail he had just sent to Justice Department spokesperson Tracy Schmaler, in which he falsely asserted (as the previous e-mails show) that Kagan “has never been involved in any of it [health-care litigation]. I’ve run it for the Office, and have never discussed the issues with her one bit.” Ironically, Kagan responded minutes later to both Katyal and Schmaler: “This needs to be coordinated. Tracy, you should not say anything about this before talking to me.”

Some have attempted to manipulate this legal analysis by seeking to equate the facts surrounding Kagan’s prior involvement in the health-care case with an entirely different set of facts regarding Justice Thomas’ wife’s former employer, which took a position on the constitutionality of Obamacare after she left the organization. But those allegations bear no relationship to any legal standard for recusal, and are so specious that they have been rejected by scholars and legal commentators across the ideological spectrum. Justice Breyer summarily dismissed this as a “false issue.”

Recusal due to previous participation in a case is not an admission of wrongdoing, but rather an expected consequence when a government lawyer accedes to the bench. Indeed, Justice Thurgood Marshall — the last solicitor general to become a justice, and the justice for whom Kagan clerked — recused himself from 98 of the 171 cases decided by the Court in his first year, and most of them were cases in which the federal government was a party.

Justice Kagan has recognized that her involvement as solicitor general in the preparation of the government’s challenge to Arizona’s immigration law prohibits her involvement in that case as a judge — even though the lawsuit was not filed until two months after she ceased performing the duties of her office due to her nomination, and even though she testified that she was not asked to express an opinion on the Arizona law. In contrast, Justice Kagan’s involvement in the preparation of the government’s defense of the health-care law began at least as early as January 2010, four months before her nomination and two months before the bill became law. That she would not follow the same course in the health-care case is dubious. These facts require recusal.

— Senator Jeff Sessions is a senior member of the Judiciary Committee.

http://www.nationalreview.com/bench-...-jeff-sessions

A president can end the war, not establish universal health care.