Great Stuff Found on the Web — Gene Veith on Obamacare defenders taken by surprise

April 4th, 2012 Post by

Found on Dr. Gene Veith’s blog, Cranach–the blog of Veith, a summary from a post on PJMedia from Rand Simberg.


Even fans of Obamacare are admitting how poorly the administration lawyers handled the argument before the Supreme Court. It is as if they didn’t anticipate the opposing arguments, much less prepare an answer for them. It is as if they didn’t even conceive of how anyone could disagree with the goodness of the law. From Rand Simberg :



Having seen the transcripts of Tuesday’s hearing before the Supreme Court of the United States, I can only conclude that . . .testing their arguments against those of their political opponents. . .not only never occurred to the solicitor general or his defenders in the media, but that the very notion that their arguments had any flaws never crossed their minds.

In fact, even Mother Jones said that it was a judicial disaster for the government:

“Solicitor General Donald B. Verrilli Jr. should be grateful to the Supreme Court for refusing to allow cameras in the courtroom, because his defense of Obamacare on Tuesday may go down as one of the most spectacular flameouts in the history of the court.

…Justice Samuel Alito asked the same question later. “Could you just -— before you move on, could you express your limiting principle as succinctly as you possibly can?” Verrilli turned to precedent again. “It’s very much like Wickard in that respect, it’s very much like Raich in that respect,” Verrilli said, pointing to two previous Supreme Court opinions liberals have held up to defend the individual mandate. Where the lawyers challenging the mandate invoked the Federalist Papers and the framers of the Constitution, Verrilli offered jargon and political talking points. If the law is upheld, it will be in spite of Verrilli’s performance, not because of it.”

The months leading up to the arguments made it clear that the government would face this obvious question. The law’s defenders knew that they had to find a simple way of answering it so that its argument didn’t leave the federal government with unlimited power. That is, Obamacare defenders would have to explain to the justices why allowing the government to compel individuals to buy insurance did not mean that the government could make individuals buy anything -— (say, broccoli or health club memberships, both of which Scalia mentioned). Verrilli was unable to do so concisely, leaving the Democratic appointees on the court to throw him life lines, all of which a flailing Verrilli failed to grasp.

It apparently never occurred to him that he might be challenged on these issues. Why was he so unprepared?

For months we’ve been hearing from the usual suspects in the MSM about how ludicrous was the notion that it was unconstitutional for the federal government to compel someone to purchase a product, as though proponents of the proposition were advocating the legitimacy of slavery, or the notion that the government couldn’t prevent someone from growing wheat for their own use on their own land, or that it couldn’t prevent an individual from growing marijuana to treat her own cancer.

As evidence for their scoffing, they pointed out how that great constitutional scholar Nancy Pelosi was incredulous at the notion that there could possibly be an issue with it, or the more honest Democrat congressman (who somehow inexplicably later lost his election) who didn’t even think that it mattered. They also pointed out the sophisticated legal argument that it must be constitutional, otherwise its proponents would have actually put forth legal arguments supporting the case:

“That the law is constitutional is best illustrated by the fact that — until recently — the Obama administration expended almost no energy defending it.”

Could there be a more airtight defense? Perhaps, if one had a sieve.

All of this is evidence of the media/academic cocoon in which so many of these commentators live. It is a world in which it is unimaginable that Wickard v. Filburn may have been wrongly decided, in which there may actually be limits to federal power. It is unimaginable that the great solons on the Hill — Pelosi, Reid, Dodd, Frank — could possibly write a bill which might actually be unconstitutional despite its hundreds of pages that not one person read, and that we couldn’t possibly know what was in it until they passed it.

As a specific example of how completely gobsmacked they were, read “legal analyst” Jeffrey Toobin’s reaction to the hearing:

“This law looks like it’s going to be struck down,” he said. “I’m telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong.”

Shocking, Jeffrey, we know. Just shocking.

Shocking, that is, to anyone completely unfamiliar with the founding document and the intent of the Founders. Sadly, this includes most people in the traditional media, on which too many continue to rely for their analysis. The White House could have avoided, or at least mitigated, this disaster by hiring the smartest opponents of the law to come in and do a moot court exercise against them, in order to prepare their advocate in advance. But, whether due to arrogance, incompetence, or both, it did not.


For the full article on pjmedia, click here.

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  1. Rahn Hasbargen
    April 4th, 2012 at 11:24 | #1

    I am not sure what this article has to do with Lutheran theology, but here is my attempt at a connection: Like those working in the secular “Kingdom of the Left”, it appears that there are people who are “just shocked” that anyone would disagee with their theological points on the “Kingdom of the Right”. People just ram ideas from watered down theology and liturgy to CoWo into their sheltered worlds and churches and are surprised that ANYONE would even have a logical reason for any opposition to it.

    In both cases, the people who end up being shocked are probably just the noisest people in the room, but not necessarily the most correct. They just talk amoung themselves and assume that everyone they aren’t talking to agrees with them.

  2. Martin R. Noland
    April 4th, 2012 at 12:28 | #2

    Dear Norm,

    Thanks for finding this post and bringing it to our attention. This is a very busy week for most pastors, and we hardly have time to watch the news, or do anything else besides pastoral duties. I would have completely missed the news coverage and pundit’s reaction in the post you copied. While scrolling for the full article on Dr. Veith’s blog, I saw this: – i.e., the President challenged the Supreme Court’s function of judicial review).

    Dr. Gene Veith is a very talented man, well-read on lots of subjects, and I check out his blog pretty frequently, more than any other one-man blog I think. He has keen political insights too. But BJS is still my regular one-stop blog. BJS is kind of like shopping at Wal-Mart or Target. The BJS website blog has every bit of news or resource I need as an LCMS pastor, and lots of things I didn’t realize I could use.

    Thanks for all your labor on this website Norm, and have a blessed Easter!

    Yours in Christ, Martin R. Noland

  3. jim claybourn
    April 4th, 2012 at 14:18 | #3

    I’ve had more than one liberal friend who was “shocked” that I had concerns about ACA/Obamacare. In their minds anyone opposed to any facet of the bill is a heartless beast who has no concerns for anyone with health problems. They just cannot see past the superficial elements of the bill.

  4. Mary Johnson
    April 4th, 2012 at 18:26 | #4

    I had a guy tell me at lunch this week (he’s a teacher – FWIW) that he didn’t understand how so many people were opposed to having healthcare for everyone. Some people just don’t think anything through, including O’s lawyers. Even the president appears to have forgotten his constitutional law classes judging from his statement this week.

    On a more serious side, each passing administration has pushed the limits on the power of the executive branch and tried to squelch the other branches in the process. We have a Nero in the making if we’d just pay attention. If not O., then the next post turtle in line, who will no doubt further the cause of a government by the executives and for the executives.

  5. Lloyd I. Cadle
    April 5th, 2012 at 10:19 | #5

    Obamacare is now said to cost about two times what they first estimated. And, that doesn’t even include the administration of the plan.

    One overlooked part of it is what companies will do to get around it. Many will choose to drop their medical plans for their employees and pay a small “penalty”, thus forcing them to switch to the Obama plan at the expence of the taxpayers.

    Thank the Lord for Luthers “two kingdom” theology which will allow us to vote for Romney with a clear conscience.

  6. Another John
    April 5th, 2012 at 17:24 | #6

    And what does this have to do with our mission here on earth? NOTHING. This is a divisive secular issue and nothing more.

    I implore you not to go down this slippery slope. There are plenty of believers on both side of the political spectrum.

  7. Rev. Stephen Schumacher
    April 5th, 2012 at 18:43 | #7

    Here is what this has to do with our mission on earth: We are being compelled by the government to pay for abortions. This is about being forced to violate our consciences. See President Harrison on
    @Another John #6

  8. Another John
    April 5th, 2012 at 23:56 | #8

    @Rev. Stephen Schumacher #7

    We’re compelled everyday to pay for things that violate our concience. We’re not compelled to undergo them. Just like many things in this world, Obamacare is a mixed bag.

    I’m outta here. I came here for a higher purpose than secular politics and I’m sorry to see a wonderful site go downhill.

  9. Lloyd I. Cadle
    April 6th, 2012 at 09:10 | #9

    @Another John #8 There are other fine theological websites like the Riddleblog by friend Dr. Kim Riddlebarger that will spice it up occasionally with a little politics and sports.

    I am also interested in hearing from my Lutheran brothers and sisters on this once in a blue moon. We can handle it.

  10. April 7th, 2012 at 00:17 | #10

    @Another John #8
    Do you not believe that God gave you your citizenship and therefore made you a ruler in this country? How do we exercise that God-given citizenship without discussing any issues of a political nature?

    I would hope you would continue to read our articles, but like anything in a free environment, you are free to not read.

  11. Doug Indeap
    April 7th, 2012 at 11:30 | #11

    @Rev. Stephen Schumacher #7

    While some employers may well oppose the law’s policy of promoting the availability of medical services they find objectionable, the law does not put those employers in the moral bind you suppose. Many initially worked themselves into a lather with the false idea that the law forced employers to provide their employees with health care plans offering services the employers considered immoral. The fact is that employers have the option of not providing any such plans and instead simply paying assessments to the government. Unless one supposes that the employers’ religion forbids payments of money to the government (all of us should enjoy such a religion), then the law’s requirement to pay assessments does not compel those employers to act contrary to their beliefs. Problem solved.

    Some nonetheless continued complaining that by paying assessments to the government they would indirectly be paying for the very things they opposed, seemingly missing that that is not a moral dilemma justifying an exemption to avoid being forced to act contrary to one’s beliefs, but rather is a gripe common to many taxpayers–who don’t much like paying taxes and who object to this or that action the government may take with the benefit of “their” tax dollars. Should each of us be exempted from paying our taxes so we aren’t thereby “forced” to pay for making war, providing health care, teaching evolution, or whatever else each of us may consider wrong or even immoral? If each of us could opt out of this or that law or tax with the excuse that our religion requires or allows it, the government and the rule of law could hardly operate.

    In any event, those complaining made enough of a stink that the government relented and announced that religious employers would be free to provide health plans with provisions to their liking (yay!) and not be required to pay the assessments otherwise required (yay!). Problem solved–again, even more.

    Nonetheless, some continue to complain, fretting that somehow the services they dislike will get paid for and somehow they will be complicit in that. They argue that if insurers (or, by the same logic, anyone, e.g., employees) pay for such services, those costs will somehow, someday be passed on to the employers in the form of demands for higher insurance premiums or higher wages. They evidently believe that when they spend a dollar and it thus becomes the property of others, they nonetheless should have some say in how others later spend that dollar. One can only wonder how it would work if all of us could tag “our” dollars this way and control their subsequent use.

  12. Johan Bergfest
    April 9th, 2012 at 17:28 | #12
  13. Pastor Ted Crandall
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