Thursday, June 28, 2012

Walter Dellinger drank the Kool-Aid

Over at Slate, Walter Dellinger has been writing things that annoy me.

First, yesterday he said this, about the challenge to the individual mandate as an exercise of the commerce power:

the question actually before the court is whether this regulation of commerce among the states is a regulation of commerce among the states. 
Well, when you put it that way... But of course that was not the question actually before the court. Dellinger's formulation of the question is not analysis. It is advocacy. It is rhetoric. It is maddening. In hindsight, the best thing about the post is its title: "Who Lost Obamacare?" This is almost too easy to mock, but the content is just as stupid as the title.

Second, today he said this:
The chief justice basically just says that Congress can do many things, but it can’t create commerce out of nothing (i.e., compelling commerce is not regulating commerce). I don’t believe that is a reasonable characterization of the law, but no matter. His opinion seems limited to actual mandates, which (for obvious reasons) don’t come around very often (i.e., once, ever).
So let me get this straight. The answer to the commerce clause is so obvious that Roberts and the four dissenters have come to an unreasonable (unsupportable) conclusion about a legal question (which everyone is so, so certain they know the answer to) that has actually only arisen once, ever?

After the oral arguments, I was going to write a post titled "ANYONE WHO TRIES TO TELL YOU THAT THE OBAMACARE CASE IS EASY (OR FRIVOLOUS) IS EITHER A LIAR OR A FOOL." Here's why: the supporters of the mandate's constitutionality under the commerce clause explicitly rely on an argument that the market for health insurance is "unique." For example, the Solicitor General relied on "the unique nature of this market," (page 12 of transcript) and Ginsburg's dissent today relied on "the unique attributes of the health-care market" (see page 28 of her dissent). The idea that this admittedly unique regulation in an admittedly unique market was somehow obviously proper should be called what it is: propaganda. Nothing less, nothing more. (Keep in mind that I actually agree that the health care market is unique, and wanted the Court to uphold the law under the Necessary and Proper clause on that basis.)

Finally, here is Dellinger's most annoying recent comment:
Contrary to Justice Scalia’s statement at argument that the president had said it was not a tax, what the president actually rejected in the interview with George Stephanopoulos was the suggestion that it was a “tax increase.” The President responded that “… for us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase.” 
I anticipated this idiotic argument two years ago:
Can Obama's statement to George Stephanopoulos that the individual mandate is not a tax be defended?  Possibly, but only in a pretty Clintonian way.  Technically, Obama did not say, "the individual mandate is not a tax."  What he said was that the individual mandate "is absolutely not a tax increase."  Charitbly put, his argument is that the bill will drive down health insurance premiums and provide other benefits that balance out any alleged tax increases.  But you really have to be drinking the kool-aid to buy that argument.
So Dellinger is drinking the kool-aid. Fine. But that exposes him as a mere partisan hack. If I want to know what the partisan hacks are arguing, I'll watch the news. I don't want to waste time reading that stuff.

Conclusion: I'm not going to waste my time reading anything Walter Dellinger writes ever again. But take heart, Mr. Dellinger—I'll happily watch you on TV!


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