The Rubber Meets The Road

On  Monday, 26 March 2012, The Supreme Court (SCOTUS) begins hearing oral arguments on the constitutionality of Obamacare.

Long-time readers of my blog (my thanks to you) may recall that way back in September of 2009 (Here) I predicted that any “mandate” that people buy health insurance would guarantee a constitutional challenge that would reach the Supreme Court. I was one of the first to make that prediction.

Time has borne me out on the accuracy of that prediction. Even aside from the legal issues involved, Obamacare has proven to be hugely unpopular with the people. The major GOP presidential candidates have vowed to repeal it should they become President. It was one of the big issues that led to the “shellacking” the Democrats took at the mid-term elections in 2010.

But even though there’s an alternate political route to getting rid of Obamacare – repeal – it’s not an acceptable alternative. Here’s why.

The “mandate” in Obamacare requires people to purchase health insurance or pay a penalty. Whether that penalty is called a “fine” or a “tax surcharge” is irrelevant. A penalty is a penalty. By doing so, Obamacare takes the unprecedented step (in this country) of forcing people to enter into a contract to purchase something from a vendor under the guise of “the greater good”. Once that rationale becomes accepted as valid, there’s no limit to the power the government has to regulate and control what people must do or buy moving forward; government’s power becomes unlimited. A rationale of “greater good” can always be found for whatever the latest “crisis du jour” is. Not enough domestic cars sold? You must buy an American car. “Unhealthy” eating habits? You must buy and eat three carrots per week per person. No matter how silly an example you can dream up, it can become a government “mandate”.

Our Constitution defines a federal government of strictly limited powers. Obamacare’s mandate removes all limits on those powers, all under the guise of “the greater good”, of course. That’s why it’s absolutely essential that Obamacare – or at least the mandate – be found unconstitutional. Otherwise, this country’s liberty is completely doomed.

And that’s why the political alternative of repeal isn’t acceptable. If the mandate is somehow held to be constitutional, a repeal is meaningless, because the power to reinstate it remains for the next change of watch; and future laws imposing draconian mandates are just around the corner. The whole idea has to have a judicial stake driven through its heart.

© Brian Baker 2012

Panic at CNN:

91 comments on “The Rubber Meets The Road

  1. Nee says:

    A Crispian to the end, whatever that may be!!
    My health care premium, which I can now no longer afford– inreased by $153.00 per month. I cannot afford to pay that because I must pay self-employment taxes, and I have not procured other employment because the eight hours I give to my business for free isn’t enough!! You were correct then and still my liberal friends do not get it. OUr liberties are being stolen bit by bit as Red Nannty proclaims that the food stamp President should be wearing a badge of honor.

    By the way, have you read Breitbart’s last book? Even though we know what he speaks of, it would be amazing if there were one thinking leftist who would admit what is discussed in his book…It’s a good read.

    • BrianR says:

      Nee, thanks for that great post.

      Funny… I thought Obamacare was supposed to STOP our premiums from going up, right?

      Well, ObaMaster… what happened, m’man?

  2. clyde says:

    Not too optimistic SCOTUS will reach the correct decision. Kennedy doesn’t have the most stellar record on siding with the Constitution. 4 for, 4 against. I do not believe for a nanosecond Obama’s people have not put some pressure on him or his staff.

    • BrianR says:

      Well, he landed on the right side of the fence on McDonald, Heller, Citizen’s United, Wisconsin RTL v. FEC and quite a few others. He’s actually gone south pretty seldom. O’Connor was the bugaboo; a supposedly “conservative” justice who came down fairly regularly on the wrong side of the Constitution, because she could so often see a “compelling reason” to ignore the Constitution. Kennedy hasn’t really done that.

      I have a pretty high level of confidence on this one; the issue is as crystal-clear as it gets.

  3. jevica says:

    Most right thinking people know it’s clear [mandate not Constitutional] let’s hope the SCOTUS knows it also.

    BTW I have agreed with you on this all along.

  4. Gunny G says:


    Good essay and in reality, it should already be a done deal if Kagan has recused herself like a decent honest person would but then again, she’s an Obama tool.

    I too am confident that it will go our way, the SCOTUS knows the way the wind blows in America AND it is the right decision to make.

    Clyde, you can bet that the pressure is on and if Obama loses, which he will, he’ll ignore it.

    • BrianR says:

      Thanks, Gunny. Yeah… Kagan. Well, she’s a lefty. If they had ANY integrity at all, they wouldn’t be lefties. You CAN’T be a lefty and believe the Constitution actually means what it says; that’s by definition.

  5. jevica says:

    This from Reason [a liberal place.]

    “3 Reasons to End Obamacare Before it Begins!”

    1. It Represents the End of Limited Government
    2. Its Price Tag is Already Ballooning.
    3. Obamacare Won’t Make Us Healthier.

    “The removal of this barrier on federal government intrusion makes the Constitution meaningless, and sets the precedent that any real or perceived health-care crisis would allow Congress to act.”

    You had better believe it SCOTUS.

    The Dems had better realize that sooner or later the PSP will control Washington then they could use the same trash.

    • BrianR says:

      Well, it it’s that obvious to those guys, it should be obvious to anyone. Thanks for that link.

      That’s another thing lefties don’t seem to care about: the self-destruction aspects of their stupid policies. You bet the PSP could do the same thing in the future. If this “mandate” is constitutional, how about a “mandate” that everyone buy a gun? At least that’s a REAL right!

      How about a “mandate” that everyone has to vote or be penalized?

      All kinds of things like that can be “mandated”, all citing the “greater good”.

  6. Thanks for that awesome posting. It saved MUCH time 🙂

  7. CW says:

    Even “the greater good” argument, which is the only hope the Left has of making the case for constitutionality, doesn’t hold water and here’s why:

    The greater good here is supposedly based upon the fact that responsible people end up paying the bill for everyone’s healthcare one way or another, so why not mandate that people buy health insurance? This argument completely ignores the question as to what compels anyone to foot the bill for those who can’t pay up front when they receive care. There’s no constitutional requirement for this. It is a man-made (i.e. gov’t created) problem which conveniently – according to the Left – requires a gov’t mandated solution.

    Healthcare providers willingly pass on the costs for services (which they are mandated by law to provide) because it’s easier to do this than to go after a bunch of deadbeats. The obvious solution – rather than absurdly imposing 10,000 pages of regulations on everyone and mandating the purchase of healthcare – is to either repeal such laws or require that people who receive care step up to the plate and pay for the services that were availed to them. Ever heard of a payment plan? People use these all the time for things they want or need now but don’t have the cash to pay for. Ever heard of debtor’s prison? Problem solved.

    Every conservative needs to get busy refuting the notion that the healthcare costs of freeloaders MUST BE passed on to everyone else, as this argument is the key to the Left’s strategy for upholding Obamacare.

    • BrianR says:

      CW… absolutely right! I couldn’t agree more, and you beautifully summarized the problem in its entirety.

      Healthcare costs escalate precisely BECAUSE of government intervention, in the case you outlined it being the “requirement” that health services be provided in hospitals. Notice how other areas of “healthcare” such as dentistry, cosmetic surgery, veterinary care for animals, optometry, etc., don’t have these problems. Those fields are competitive — providers have to compete for your business, and don’t treat deadbeats — and so those costs remain affordable.

      • Debora says:

        My cousin, a vet, commented once that the increasing popularity of pet insurance is causing costs to rise….first of all, insurance companies won’t pay the actual cost for many procedures, but Vets have to accept the policies to remain competitive; insurance has led to an increased demand for certain services (now more “affordable” due to the insurance) setting off “supply & demand” economics with medical supplies causing the office costs to go up even higher…..the whole thing meant that Vets had to increase costs to the non-insured in order to make ends meet. The more I hear, the more I come to think that the real villain here is the insurance companies.

      • BrianR says:

        Hi, Debora. Thanks for stopping by and taking the time to comment.

        In a sense, you’re indirectly right. The insurance companies negotiate with the providers to set rates of reimbursement at a percentage of the “normal” price. The providers then have to RAISE their “normal” price to keep enough revenue coming in to make a profit. The cycle starts.

        The proof of that thesis? Go into any healthcare provider — even DOCTORS — and negotiate a cash price before you see them. Most people aren’t aware of this, but they WILL do that if you assure them there are no insurance companies or government (read Medicare) agencies involved.

  8. If the climate is right in 2013, it may be possible to pass a Constitutional Amendment prohibiting the action. This assumes an Obama loss and a SC overturn this summer, but it is possible.

    Overall, I believe that SC will barely overturn it, due to some major gaffes made by Administration officials indicating its true intentions and not the court case argument being made supporting its legality.

    • BrianR says:

      Ohio Con, welcome to The Island, and thanks for taking the time to write your comment.

      I’m interested in finding out why you think it’ll be overturned based on gaffes rather than the constitutional issue. Recent SCOTUS decisions seem to be based on arguments about constitutionality. Your idea is intriguing to me.

      • I believe that the Individual Mandate could be overturned on the premise that it is not a tax, which is the legal argument against it.

        One particular gaffe is that the White House Budget Director explicitly said that the IM was not a tax on national television. This is important because the Admin is arguing that the IM is a tax and therefore is constitutional for congress to levy. Adding to the gaffes, President Obama said that there would be no tax increases in ObamaCare, which would imply that they did not consider the IM a tax/levy.

        Also, perhaps just as important and already mentioned today on the Limbaugh Show before I could mention it to you is the idea that we can be forced into a contract, which by definition is impossible. One who is forced into a contract, is therefore not in a contract because it must be, by definition, willingly agreed to. The IM literally forces us into a contract, which is against common law and legal precedent, and not willingly agreed to.

        Anyway, that is my thoughts on the matter. …

      • BrianR says:

        Well said, Ohio Con. I fully agree.

        They essentially hung themselves on the “tax” issue. As I mentioned, “taxes” are only legitimate when they’re used to raise revenue to provide for the legitimate functions of government. It has to be applied equitably and universally. If a “tax” is based on one’s actions or behavior, it’s no longer a “tax”, it’s a “penalty” or “fine”. That, according to the 5th Amendment, requires “due process”; in other words, a trial. You can’t simply be required to pay an additional “tax” because you refused to do something the government wanted you to do, unless they want to take you to court over it.

        Interestingly enough, a side issue I’ve never heard raised: what about Christian Scientists? They don’t believe in using conventional “healthcare” at all. Isn’t this “mandate” religious discrimination, and a violation of their 1st Amendment rights?

        As to the “contract” issue: yep! Exactly as I wrote. Just FYI, I’ve noticed many times over the years that a few days after I write something in my blog — and this goes back for several years, to my blog on Townhall, which I still publish — my thoughts would be echoed on talk radio and elsewhere. Many times by Limbaugh. If the commentators do have people reading blogs for material, I have to say I find it flattering.

        Great stuff!

  9. Sean Combs
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  10. […] to purchase health insurance. If we cross this line and begin sliding down the slippery slope, what WON’T the government be able to mandate that we purchase? Thanks to Denise for the […]

  11. Gray Ghost (Mississippi) says:

    Brian, I am not real sure how all of this will turn out in the Supreme Court. If I had to make a prediction, I would say that the court will rule that it is too early to make a ruling since none of the actual requirements will take effect for another couple of years. I realize that this goes “against the grain” but in my opinion I believe that the Supreme Court doesn’t want to touch this “monster” until after Obama is out of office. If Obama loses in November of 2012, then the court will start preparing to actually look at this.

    Let’s face it. Either you, GunnyG, or I would face the “bear” and be prepared to fight. But most of those in DC (be they Supreme Court justices, US senators, or US representatives) are for the most part politicians. And by definition, politicians are never ready to fight a battle that could mean their life was at stake (or even their political life).

    However, that being said, I too will watch this with the greatest of interest.

    • BrianR says:

      Gray, that’s one of the defenses: that the challenge is too early since it hasn’t taken effect yet. I think that fails, because even though the mandate hasn’t gone into effect yet, people are still having to take actions to prepare for it and are therefore already suffering the effects of it. Further. other elements of the law ARE in effect, and if you can challenge the law based on those aspects, at that point ALL elements of the law are subject to challenge.

      Of course, the other problem for the Obamaites is their claim that the penalty is a “tax”. It’s not. Taxes are mechanisms to raise government revenue. This is a penalty based on behavior and actions, and as such it’s a “fine”. Well, a “fine” requires a trial or other “due process”. Where’s the due process in this penalty assessment? That CAN be ruled unconstitutional before it takes effect.

      I think SCOTUS does want to take this on, based on the Roberts Court’s willingness to take on other big constitutional issues over the last few years. And, of course, they did grant cert. They didn’t have to. They could have remanded and deferred.

  12. clyde says:

    I see the moonbats are out “protesting” in DC already. Now who do you suppose set THAT up? Sheesh. After going back and doing some review,I will admit my mistake on thinking Kennedy would be the problem. It’ll be interesting to see where this goes. Gut feeling: 5 to 4 to overturn it.

    • BrianR says:

      Clyde, I agree with your prediction. 5 to 4 to overturn.

      Just like those other cases I cited; all 5 – 4.

  13. jevica says:

    Brian I’m going to link to some info about what polls say on this issue [yes I don’t like them but it is interesting]

    “Finally, there is a big vote of no-confidence in the Supreme Court as well. The Hill asked whether the justices decide cases based on the Constitution or on their own personal political beliefs. By more than 2-1 (56/27), voters believe the justices act on their personal political beliefs rather than the Constitution. That ratio holds up across every demographic in the crosstabs. One presumes that a 5-4 decision on this case will only corroborate that impression.”

    “Two new polls show majority want Supreme Court to overturn ObamaCare”

    This seems [following] so true and I believe it. “. . . This looks like a symptom of poor civics instruction in the US, which should teach that the Constitution is the foundational legal document of the country, and that laws cannot contradict it, especially federal law, which the Constitution explicitly exists to limit.”

    • BrianR says:

      Couldn’t agree more, Jev. If the Constitution was effectively taught in school civics classes, there wouldn’t be any liberals at all in this country. It’s absolutely impossible to conform liberalism with the Constitution. I say that without qualification.

  14. jevica says:

    Brian what fools these liberals be BHO included;

    “. . . “Buffett Rule,” which would set a 30 percent minimum effective tax rate for families and businesses with incomes greater than $1 million, would raise a paltry $47 billion over 10 years according to a recent report by the Joint Committee on Taxation.”

    “. . . During that same time frame, President Obama’s budget would ring up an additional $6.7 trillion in new debt . . . ”

    The supposed income from the “Buffett Rule” would lower the debt 0.2% it’s all about class warfare and not about debt reduction.

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  16. thedrpete says:

    I think, BrianR, that your take is the same as that of George Will and that you are both correct.

    • BrianR says:

      Thanks, DrP. I think it’s pretty much unanimous across the board of those who think the Constitution actually means what it says.

  17. says:

    “…under the guise of ‘greater good’..”
    This is the liberal’s church hymn.
    Every oppressive law that has been passed has been “..for your own good.”
    Seat belts.
    Smoking ordinances.
    Gun laws.
    and on and on… All for your own good.
    And every one of them has been opposed by an overwhelming majority of the American citizens.

    • BrianR says:

      Yep, Buck. True.

      It’s the very personification of the old adage that the road to hell is paved with good intentions.

  18. clyde says:

    Been following some of the testimony. Are these guys from the Solicitor General’s office ALL incompetent? Sure sounds like it. Loved Scalia’s comment: “You expect us to read it”?

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  20. Jack says:

    After Obamacare is struck down maybe we can work on getting Bushcare repealed too…

  21. Jack says:

    Getting rid of Obamacare is essential, but stopping there isn’t enough…

    “This demographic burst — combined with the addition of a prescription drug benefit in 2006 and rising health care costs generally — has created an unfunded liability of nearly $25 trillion over the lifetime of those now in the program as workers and retirees.”

    • BrianR says:

      Great link, Jack. I’m actually surprised that USA Today would publish such an article. And you’re right: this country needs to take some drastic steps to reverse things; we’re Greece writ large. We simply haven’t keeled over yet.

      • Jack says:

        USA Today, yeah, surprised me too.

        A scotus striking down of O-Care will be the biggest overturn of fed law since, what, the New Deal?

        Hopefully its only a first step in getting the feds completely out of HC.

      • BrianR says:

        Maaaannn… when even the LEFTY press is on his butt, Obama’s in deep kimchee!

        I think you’re right; probably since at least the New Deal. It’s what SCOTUS should have done to most of FDR’s agenda, especially Social Insecurity.

        Obamacareless is probably the biggest federal usurpation of rights since then; the cases that killed McCain-Feingold are probably close, because that one effectively killed political free speech during elections, so it may be a wash. Certainly close. Those cases would be Wisnconsin Right To Life v. FEC, and of course Citizens United.

        The louder the socialists scream, the better and more significant the ruling. That’s kind of my rule of thumb.


  22. Nee says:

    Brian– Have you read peggy Noonan’s latest? As we, the loyal readers of TVFTI know- the COWboy was never going to be a uniter and for the life of me– why a liberal thinker doesn’t get that it’s about Liberty not “free” goods is beyond the pale. Someone actually said no rational person would want or need to be without health care…and Martin said,(hahahaha) fine. It’s like buying rubbers…you either want them for protection or you don’t “need” them. I howled because if we simply apply it across the board, the freedoms we had before entitements and the abilty to barter and choose how we spend the money we earn would go alot further. Instead, we may be relegated to failure because others believe they know best. Sickening.

    • BrianR says:

      Nee, I did read that; another regretful ObaMessiah supporter. Why would anyone who claims to be “conservative” and have half a brain vote for that f-idiot anyway? “Uniter”???? Just wait until you read my next essay, posting in a few hours (or less).

      It’s always about our “betters” — the elites — knowing better than we how we have to live our lives … for our own good, of course. That’s the very foundation of tyranny.

      Even Hitler thought he was doing “good” for his country. He didn’t rise to power by claiming he wanted to institute a murderous dictatorship. He wouldn’t have gotten past first base! He believed and claimed he could improve the lot of his fellow Germans, and that’s how he got so much support.

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  25. jevica says:

    Brian Mussolini made the trains run on time. As I [and you] have said McCain-Feingold was a greatest attack on the first Amendment in my time. All the idiots lined up and told us how great it was.

    Speaking of trains, “. . . California’s choo-choo to nowhere will only waste 68 billion instead of 98 billion”

    They lowered the cost of the “high speed rail” from 98 billion to 68 billion, is Moonbeam ok with this waste of money?

    Does CA want the top honors?

    • BrianR says:

      Jev, don’t believe those “revised” figures. They’re a flat-out lie by Moonbeam and his suckups.

      They base the projected revenues of the project on a ridership that would exceed the entire ridership of Amtrak nationwide.

      Even the $68 billion is over double the original promised cost when the bonds were passed on the ballot years ago.

      This ugly thing needs a stake driven through its heart, drawn and quartered, hanged from the highest tree, keelhauled, burned, and the ashes scattered to the four winds.

      • jevica says:


        Notice how the left is trying to figure [tell everyone] how O-care, will be upheld?

        Also did you see/hear BHO saying “Obama: I sure hope the Supreme Court doesn’t do something unprecedented by striking down ObamaCare” what a fool. He is supposed to be a Constitutional scholar, what a laugh. this is it. “The whole point of judicial review is to make sure that congressional majorities, strong or not, remain bound by their enumerated powers and the Bill of Rights. ”

      • BrianR says:

        The guy’s a total buffoon. I don’t know where this myth about him being a “costitutional scholar” came from. He has a Juris Doctorate, which is a standard-issue law degree. That’s ALL it is. He taught a couple of courses in college, and that’s it. He’s no “professor”, nor “scholar”, nor anything else other than a plain-wrap lawyer.

        Funny how a SCOTUS dumping of Obamacare would be “partisan”, but the fact that it was enacted without one single GOP vote somehow isn’t.

        What a bunch of hypocritical a-holes.

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  27. Here, here. You get the traditional Navy “Well done!” on this one.

    Now if the Supremes only overturn the mandate part, repeal of the rest is imperative!

    • BrianR says:

      Thank you, kind sir.

      I think there’s a pretty good chance they’ll chuck the whole law, based on the transcripts I’ve read. Maybe I’m wrong, but they seem to be saying the law is too long and complex to just chuck part of it, because it’s impossible to tell how that affects the rest of it. They may just simply toss the whole thing overboard.

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    • BrianR says:

      Diablo, thanks for the suggestion (and the kind words).

      I’ve actually considered that, and it’s why I added the picture to this essay when I wrote it. When I started blogging some years back, I really considered myself pretty much an essayist. It’s only recently I’ve started thinking about EXACTLY what you suggest… and I think you’re right.

      I fully intend to start adding more visuals to my work. I agree that it adds more punch and interest, if nothing else. Also, I consider myself a pretty good photographer, so I can kind of mix my hobbies. A blogger has to be careful about what pictures they use, because there could be copyright issues involved.

      In my early days of blogging, over at the Townhall site, I used to add more pictures to my stuff. I don’t know what happened. But thanks for that suggestion. I’m absolutely going to take it to heart.

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      Brendan, thanks for saying that.

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