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    Risk of selecting a nominee before US Sup Ct rules on Obamacare mandate

    Risk of selecting a nominee before US Sup Ct rules on Obamacare mandate

    The U.S. Supreme Court hears argument starting March 26 on various aspects Obamacare, front and center the mandate.  A ruling is expected by the end of June.

    Purity in opposing mandates is the reason to be of Rick Santorum’s campaign argument:  Mitt is tainted due to Romneycare, and Newt is tainted because he was willing to consider a mandate in the past.

    Mitt invokes the 10th Amendment as his defense, Newt says Rick is overstating Newt’s past support for some type mandate.

    Santorum’s anti-Romney in argument in particular hinges on whether the mandate is enforceable:

    Virginia Attorney General Kenneth T. Cuccinelli II, who has led the state’s fight against President Obama’s health care law, warned Thursday that Republicans would be “effectively giving up the issue” if they tap Mitt Romney as their presidential nominee.

    The claim echoes the message of Rick Santorum, Mr. Romney’s chief opponent for the party’s nod, who has said the health care law the former Massachusetts governor signed is too close to Democrats’ national law to leave Mr. Romney any room to criticize it.

    “One thing that people voting as between Romney and Santorum is, they’re deciding whether to give up that issue,” Mr. Cuccinelli said on C-SPAN’s “Newsmakers” program.

    So what happens if the Supreme Court rules one way or the other.  Since I consider the issue mostly neutral for Newt, here are some possibilities as between Rick and Mitt:

    (1) Supreme Court upholds constitutionality of mandate.  Bad for Mitt, because then there is nothing keeping Romneycare from going national, if there is a desire to do so.  Good for Rick.

    (2) Supreme Court strikes mandate (with or without striking entire law due to non-severability).  Good for Mitt, who can say, see I told you so, not need to worry about me.  Bad for Rick, because his main argument against a Romney candidacy — the ability to confront Obama  on the issue — evaporates.  That leaves an economic argument between the two, which is a toss up.

    By mid-June we may have a nominee.  But if we don’t, a couple of weeks after that a Supreme Court ruling could change everything.

    Sounds like the honey badger may know what he’s doing.


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    Subotai Bahadur | March 17, 2012 at 11:05 am

    With all due respect to the Professor and any other legal professionals here; as a lay person who is active in politics I have to say that the courts are as political as the House, the Senate, or the Executive Branch. And in their own way, as corrupt. Having dealt with prosecutors, defense attorneys, and judges for decades and having been pre-Law in college [ended up wearing a badge as a career instead of hanging a JD on my wall]; like blatant politicians those in the legal field are influenced as much by personal relationships, mutually beneficial relationships, and personal “perks” and benefits as they are by either law or the Constitution of 1787.

    Enforcement of the law, legal precedent, or of the Constitution, is based on the whim of the moment by prosecutors and judges; and the checks and balances of our system seems to work far more effectively when viewed through the lens of political benefits and amour propre than any devotion to the “rule of law”. Indeed, for those not members of the political-legal system the “rule of law” is very much a one way street with the rules flowing downhill.

    Taking any issue to court is possible; but it is essentially a crap-shoot, with worse odds. Getting an issue before a court functionally requires having funding far beyond the means of ordinary citizens; especially when dealing with any level of government whose funds dedicated to the preservation of their own power are unlimited.

    Getting “standing” to be allowed to file a court action against the government is the first line of defense of the Political Class. It is common to find that an individual affected by a law, does not have standing to file, nor does a group of individuals. We have seen that in cases of government violations involving vote fraud; neither individuals, nor political parties have “standing” to take the case to court because of who the fraud benefits.

    Anyone who watches the Supreme Court knows that Sotomayer, Kagen, and Ginsburg can be depended to rule in favor of increased power of the State over the individual; except when sex is involved. Kennedy is a “swing” vote, but he mostly swings to the Left in any critical matter. Breyer will “swing”, but mostly to the Right. The rest will usually, but not always, give preference to the rights of the individual.

    While the decisions will be wrapped up in a template coming from the Constitution of 1787 and prior rulings; they have the power to make things up as they go along, to find shadows and penumbras, to emphasize one section of the Constitution over another in any given case, and decide whether stare decisis applies or not. Consistency is not required.

    The case will be argued in terms of the Constitution and law. It will be decided based on the political readings of the Justices. Do not depend on Justice from the courts. Expect Law, which is tied to the power of the State.

    Personally, I expect that there is a slightly better than 50% chance that the Individual Mandate will be struck down. But I also expect that despite the absence of a severability clause, which would doom any other law in its entirety, the rest of the taxes and regulations will be upheld. Including the majority of the law which regulates matters far beyond healthcare. The issue of whether the revenue raising clauses arose in the House will not be involved, because the House gave up its power of the purse over the last 3 years.

    Count this as “cynical Saturday”.

    Subotai Bahadur

    Browndog | March 17, 2012 at 12:02 pm

    Let us not overlook the 18,000 lb. elephant in the room.

    ObamaCare will have to be repealed, as it is designed to fail.

    It’s a simple question of how many lose their healthcare (not coverage, but the actual care), how many hospitals close, and how many middle class families fall into poverty trying to maintain the current status quo–before the population revolts.

    Henry Hawkins | March 17, 2012 at 8:52 pm

    It is important not to overlook the fact that, while Obamacare is too young for it, Romneycare does have a performance track record and it is miserable. Even if Obamacare is essentially struck down (sans mandate it won’t work at all), it will remain on the drawing table of liberals in slightly amended form until they again attain the WH and congressional majorities. Romneycare needs to remain enshrined as a glowing example of precisely what does not work.

    If Romney had denounced Romneycare, he’d have had the 2012 GOP nomination in hand a month ago.

    If Romney had stayed with his own Democrat Party, he’d have won the White House in 2008.

    […] “…So what happens if the Supreme Court rules one way or the other.  Since I consider the issue mostly neutral for Newt, here are some possibilities as between Rick and Mitt: […]

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