Today Nathan Daschle, Executive Director of the Democratic Governors Association, emailed me, as he does once every week or two. This week, his topic was urging me to sign a petition against the State lawsuits filed against Obamacare. [BTW, "Obamacare" is a standard part of political discourse, used by, inter alia, Michael Barone, one of America's foremost political reporters. It is similar to "Reaganomics," which was used to describe President Reagan's economic policies, or "Hillarycare," which was used to describe the health policy proposals promoted by the then-First Lady.] The letter from Mr. Daschle states: “Legal scholars are unanimous: these lawsuits have no merit.” The text of the petition itself has only four sentences, one of which is “Legal scholars are unanimous in their opinion that these suits have no merit.”
The statements are indisputably false. As I have previously detailed, among the legal scholars who contend that Obamacare is unconstitutional are Randy Barnett and Michael McConnell, both of them among the most important constitutional scholars of our time. Their views about Obamacare have appeared in widely-read publications such as the Wall Street Journal, Washington Post, and Washington Times.
Accordingly, Republican Governors who receive the DGA petitions demanding that the lawsuits be terminated might take them with a grain of salt, in that a plainly false claim was used to help induce the petitioners to sign.
Well worth reading is Randy Barnett’s Heritage Foundation monograph on the constitutional issues.
Federal Dog says:
Even if legal scholars were unanimous, that would not mean the contest has no merit.
April 12, 2010, 4:47 pmwolfefan says:
HI DK –
IANAL, so I don’t pretend to be able to evaluate (or even understand fully) the various Constitutional objections and arguments against the health care bill, either in the state lawsuits or otherwise. Are the objections that Barnett, McConnell, et.al. make the same as those in the lawsuits, and if so do Barnett and colleagues think that standing or timing is a problem at this time?
[DK: For question one, the answer is yes. They've both discussed the mandate as impermissible under the tax power. Barnett has also discussed the violation of the interstate commerce power. These are the core issues of the state suits. I don't recall anything from them on the standing issue. The relaxed rule for State standing in Mass. v. EPA may be quite helpful for the 13-state suit. Virginia's suit, based on a specific anti-mandate statute in state law, appears to be in better shape under the old-fashioned standing rule.]
April 12, 2010, 4:51 pmChrisTS says:
Is the claim an ” inaccurate legal claim” or an inaccurate claim about legal opinion?
April 12, 2010, 4:55 pmOrin Kerr says:
It will take me awhile to get over my surprise that an e-mail from the Democratic Governor’s Association could contain an error. In the meantime, I was intrigued by this summary by Dan Markel of a recent Q&A by Justice Scalia at Florida State’s law school: “Scalia’s prognosis is that federalism is dead and that Congress can do anything it wants.”
April 12, 2010, 4:56 pmyankev says:
Legal scholars were also unanimous that the Second Amendment does not protect the right of individuals to own arms except when they are in the National Guard. Except they weren’t unanimous.
I suspect that the governors mean that every true Scottsman who is a legal scholar thinks the suits have no merit. Anyone who thinks otherwise is obviously no true legal scholar.
April 12, 2010, 4:56 pmSara says:
Did McConnell write anything but a critique of the Slaughter rule, which did not pass and is not part of the health care bill?
April 12, 2010, 4:57 pmAnonsters says:
It will take me a while to get over my surprise that Justice Scalia’s answers at a law school Q&A are petulant and snarky.
April 12, 2010, 5:00 pmzuch says:
While we’re at it, maybe we ought to look at how many claims, legal or otherwise, are made in Republican fora that are simply factually false. If we’re looking for full employment, that is….
Which reminds me: OT1H, Republicans are saying of the unemployed, “whazzamatta? why don’t you get a job and stop freeloading?” and OTOH, saying that, as one of the horrors they’re perpetrating, the Democrats are heading us towards a state of permanent (assumedly “high”, but the claimiants didn’t bother to to clarify) unemployment. I gathered these two scintillating but incompatible insights from the luminaries on RW talk radio.
Cheers,
April 12, 2010, 5:02 pmUrso says:
Of course, everything depends on how you define “scholar.”
April 12, 2010, 5:02 pmegd says:
He should have said “The consensus is that these claims have no legal merit.”
It worked for global warming.
April 12, 2010, 5:02 pmRecovering Law Grad says:
“Obamacare” is a pejorative partisan term, just as “Hillarycare” was and, to the extent someone like Barone uses, it demonstrates how easily spun the media is. It’s no different than “death tax,” which the WSJ trotted out in a straight news piece recently.
“Reaganomics” was not a term developed by political operatives for the purpose of belittling Reagan’s policies. And, if I am wrong and it was, then it shouldn’t be used as a neutral shorthand for Reagan’s economic policies.
April 12, 2010, 5:03 pmSnaphappy says:
I wonder how long David’s list of “the most important constitutional scholars of our time” is.
April 12, 2010, 5:05 pmzuch says:
Prof. Kopel:
But your post header states: “Inaccurate legal claim from the Democratic Governors Association”.
This is not a “legal claim”, but rather one of fact. It would seem that you have made an inaccurate factual claim here. Do we need a separate post to chastise you for your error?
Cheers,
April 12, 2010, 5:06 pmOrin Kerr says:
It will take me a while to get over my surprise that Justice Scalia’s answers at a law school Q&A are petulant and snarky.
It will take me a while to figure out why Anonsters thinks that Scalia’s answer was petulant and snarky.
April 12, 2010, 5:09 pmSarcastro says:
I think libs should take back “Obamacare.” Only liberals get to use it. That’s our word!
April 12, 2010, 5:09 pmzuch says:
Prof. Kopel [or perhaps Prof. Barnett]:
Does Prof. Barnett think similarly that federal airport, fuel, and liquor taxes are unconstitutional for failing to be “income” taxes and failing to be apportioned per capita?
Cheers,
April 12, 2010, 5:10 pmSnaphappy says:
The Republicans are much better at that than the Dems are. Witness how “the Nuclear Option,” coined by a Republican, suddenly became pejorative, and how the self-proclaimed “teabaggers” suddenly took offense that others would call them such a disgusting name.
April 12, 2010, 5:13 pmSteve says:
Well, if Michael Barone says Obamacare is a neutral and perfectly reasonable term, who am I to argue with the well-respected political reporter who said, “The liberal media attacked Sarah Palin because she did not abort her Down syndrome baby.”
Barone is not only one of the top political commentators for the Fox News Channel, but he currently draws his paycheck from the Washington Examiner, the publication which sagely noted that President Obama’s executive order on Interpol “may be the most destructive blow ever struck against American constitutional civil liberties.” As I recall, only the most knee-jerk partisan apologists were caught defending the Interpol order after Michael Barone’s publication courageously exposed the truth.
But wait, this just in, James Carville, one of the nation’s best-known political consultants, says Obamacare is a mean term and you shouldn’t use it. This dispute among respected and non-partisan experts leaves me in a state of confusion.
April 12, 2010, 5:13 pmyankee says:
Do you have any evidence of Barone calling the Affordable Care Act “Obamacare” in a straight news article? All the cites I find for Barone using the term are in opinion columns.
I think calling the Affordable Care Act “Obamacare” isn’t nearly as bad as the deliberately misleading term “death tax.” It’s an attempt to be pejorative, but not a very effective one. It’s definitely not worth whining about, though Kopel is the one who raised the issue here.
April 12, 2010, 5:15 pmAnonsters says:
Because it sounds more like a petulant, bawwwing answer than a thoughtful, balanced assessment.
“Federalism is dead, Congress can do whatever it wants, no one respects the Constitution, Marsha, Marsha, Marsha!”
April 12, 2010, 5:19 pmwolfefan says:
Thank you, DK. I appreciate your time and your expertise.
April 12, 2010, 5:22 pmUrso says:
I’m curious to where you got the text of his supposedly petulant answer from – what I saw was simply a list of things some professor thought about the speech, with no direct quotes.
April 12, 2010, 5:26 pmAnonsters says:
I was assuming it was a reasonably accurate portrait of what he was saying. If not, sue PrawfsBlawg, not me.
April 12, 2010, 5:27 pmRichard Riley says:
I think commenter Sara is correct – McConnell had an oped that “deem and pass” would be unconstitutional, but of course the House ended up not using that procedure and I don’t believe McConnell has written anything on the basic constitutionality of the Affordable Care Act (better name!). Could be wrong.
As I commented on a post of Todd Zywicki’s not long ago, I think the standing issues for the state lawsuits are pretty significant – certainly not dismissed as easily as David Kopel thinks. (Admittedly I am no expert on Massachusetts v EPA.) If Virginia has Article III standing, wouldn’t that mean that any state, in its sovereign capacity as a state (i.e., not as parens patriae), could generate standing to challenge any federal law on any constitutional grounds whatever simply by passing a state law that said “Activity X authorized by federal law Y is hereby declared illegal in this state”? That seems an awfully broad (and inaccurate) principle.
Once the Affordable Care Act takes effect, there is no doubt that an individual Virginian would have standing to challenge the federal mandate since the assertedly unconstitutional federal law makes that person do something that state law says he does not have to do. But I really don’t see why the state itself has any standing.
April 12, 2010, 5:27 pmMartyA says:
There are some of us who would NEVER accept as honest or accurate ANYTHING said by a person named “Daschle.”
April 12, 2010, 5:27 pmRecovering Law Grad says:
Yankee -
I’ll sleep fine tonight, but couldn’t resist responding to Kopel’s lame attempt to inoculate himself. I mean, if he had to go to the trouble to preemptively justify his use of the term, why not call it something non-controversial?
April 12, 2010, 5:27 pmzuch says:
More that one person has asserted that the whole thing is pretty much just Republican politics.
Is it? To what extent have similar “taxes”, “mandates”, etc., aroused ire? To what extent is the virtually unanimous Republican opposition to the HCR bill simply peevishness (if not anger) at Democrats enacting legislation favoured by Democrats (while having been supported in part or in whole by many of the very same Republicans previously)?
To me, the hysteria about the unconstitutionality is far out of proportion to its impact, and the quality of the opposition seems just a tad irrational … and unexplainable except as Republican opposition to anything Democratic or Obama. The appellation “Obamacare” is the first clue of this, seeing as Obama did very little in forming and writing the bill, leaving the vast part of this up to Congress (which may well have been a mistake).
Cheers,
April 12, 2010, 5:29 pmyankee says:
My personal favorite is “privatization.” The term was invented by think-tankish proponents of having private entities perform formerly public functions, who used it among themselves. Then when “privatization” became a hot topic of conversation after the ’94 Republican Revolution, it turned out that the term was very unpopular with the public. “Privatization” always polls well below a description of the privatization plan. Now privatization proponents studiously avoid the term.
April 12, 2010, 5:30 pmwunson says:
Absolutely, there are some of us that are so hyper-partisan that the mere last name of one of our hated enemies throws us into a rage so blind we equate everyone with the same last name to the object of our ire.
Unsurprisingly, there is strong overlap between this group and people who make insipid blog comments.
April 12, 2010, 5:30 pmyankev says:
Yes, along with “The debate is over.” Then he could say that anyone who disagrees is no better than a Holocaust denier.
April 12, 2010, 5:31 pmUrso says:
I’d assume so too – he probably did say something along the lines of “federalism is dead.” What I’m wondering is where you got idea that he was “bawwing” and being “petulant,” if not from the depths of your imagination.
April 12, 2010, 5:32 pmOrin Kerr says:
Anonsters, if I understand your concerns correctly, a thoughtful, balanced answer would be this:
April 12, 2010, 5:33 pmyankev says:
The movement called itself the Tea Party. The use of Tea Bagger, AFAIK, originated with some TV commentator who was hardly sympathetic to the movement. I have yet to see anyone who identifies with the tea party movement use the name tea bagger with reference to the movement.
April 12, 2010, 5:35 pmAnonsters says:
“Congress can do whatever it wants” sounds awfully petulant to me, particularly when connected with the proposition that federalism is dead (which ostensibly makes Scalia sad). It’s reminscent of some of the hysteria one smells around these parts re: HCR, etc.
I have to say, I’m a little surprised that people are pushing back so hard on the idea that Scalia is snarky. It’s kind of his shtick.
April 12, 2010, 5:36 pmmetro11 says:
Is this the Nathan Daschle who is Tom Daschle’s son?
See here:
http://en.wikipedia.org/wiki/Tom_Daschle
April 12, 2010, 5:39 pmyankev says:
Which is already pushing the cost of retiree coverage out of the price range of some corporations, and which is predicted to exacerbate the increasing cost of coverage. But don’t tell anyone at Rep. Waxman’s Ministry of Truth that I said so, as I don’t want an invitation from the Ministry of Love.
April 12, 2010, 5:39 pmwunson says:
Unfortunately it did originate with the teabaggers themselves. Apparently a bunch of old white people blinded by rage about socialism in THEIR MEDICARE did not understand what it was a slang term for… go figure. The commentators just picked up on it and reminded them of the meaning.
April 12, 2010, 5:41 pmyankev says:
I see that Wunson beat me to it. Except he was apparently serious.
April 12, 2010, 5:42 pmAnonsters says:
Undoubtedly from the practice, very early on in the life of their “movement,” of sending tea bags to Congresspeople.
April 12, 2010, 5:44 pmyankev says:
I did not know that. What respectable tea party would use tea bags rather than loose tea?
April 12, 2010, 5:44 pmBrian K says:
I think this one just won the thread…the only comment to literally make me laugh out loud.
April 12, 2010, 5:45 pmterrivus says:
Why do you insist that Michael McConnell “contend[s] that Obamacare is unconstitutional”? That was SOLELY with respect to the “self-executing” rule that the Democrats abandoned. There is NOTHING in either of McConnell’s two WSJ op-eds or anything in the WaPo that supports the proposition that McConnell believes that the healthcare bill, as enacted, is unconstitutional.
Seriously–show me where Judge McConnell has written or said that “the mandate [is] impermissible under the interstate commerce power,” as you write above. Provide a link. Provide a cite.
I’m an opponent of the healthcare bill. But I’m a proponent of Judge McConnell. And this is now the second time on VC that a post has claimed, spuriously, that he thinks the state lawsuits have merit.
Also, when you include Randy Barnett with Judge McConnell as “among the most important constitutional scholars of our time,” you’re really not doing your credibility any favors.
April 12, 2010, 5:45 pmwunson says:
I am serious in that the scholars cited by Mr. Bernstein are supporters of fringe theories. So yes, speaking colloquially when we say “all scholars” we mean “all scholars within a range we would consider the mainstream.” They are not in any Holocaust deniers.
April 12, 2010, 5:47 pmSteve says:
But it doesn’t rhyme, and it’s not an adjective…
April 12, 2010, 5:47 pmwooga says:
For those of us with a 125 cafeteria plan, the new health care bill will raise our taxes substantially (it eliminates $2,500 of ‘off the top’ deduction for ‘flex’ medical expenses). That is a purely non-partisan, non-ideological reason to oppose the law. Plus, it covers two Obama lies in one (I get to keep my plan, and I my taxes won’t go up by one dime). So, is this opposition irrational or explainable? Oh I know, it’s racist!
April 12, 2010, 5:49 pmyankee says:
That’s precisely it. They called themselves “teabaggers” because they were sending tea bags to members of Congress, without realizing it was the name of a sex act. Then people who knew what teabagging is picked up on it, and the rest is history.
Personally, I think the continuing to use the term is juvenile.
April 12, 2010, 5:49 pmAnonsters says:
Pedant. :P
April 12, 2010, 5:50 pmAnonsters says:
I think it’s possible that they described what they were doing as “teabagging,” and then they were humorously branded “teabaggers” by others. But I could just be misremembering the details. Either way, bwomp bwomp.
April 12, 2010, 5:51 pmmetro11 says:
Prof. Kopel:
Is it just me, or have the comments at this site (for some time) been almost taken over by “snarky” (to use anonsters’ term) liberals?
It’s odd that the blog posts remain (relatively) conservative (I’m looking at you, Prof. Kerr), but the comments have become very liberal.
April 12, 2010, 5:52 pmegd says:
The fact that you mistakenly interpreted a line in a blog entry as a direct quote is the fault of the blogger?
Umm…what?
On the merits, ideologically where do you think the limits of Congress’ power lie? What kind of bill would be outside of Congress’ authority?
April 12, 2010, 5:53 pmAnonsters says:
I don’t think it is within the power of Congress to make a federal case out of a flippant comment on a blog about the state of a Supreme Court justice’s mind when answering questions at a law school Q&A.
How’s that?
April 12, 2010, 5:59 pmJoe says:
It is similar to “Reaganomics,” which was used to describe President Reagan’s economic policies
It is not “similar” in that the Reagan Administration had much more of a role in formulating the policy.
“Hillarycare,” which was used to describe the health policy proposals promoted by the then-First Lady.
Hillary was a leader in the formulation of the proposal in a way Obama was not.
Michael Barone, one of America’s foremost political reporters
I’m unsure why this is helpful. The leading political reporters also probably don’t take this challenge seriously. I assume they might be wrong and called on it. That is, “Obamacare” isn’t right just because they use it somehow.
I’d actually — pardon me — like to see the whole letter, to get a full sense of the context. As to Randy Barnett, I’m actually reading his collection on the 9A. His writings on interesting. But, on this issue (as with others), he himself admits the litigation is a longshot.
April 12, 2010, 5:59 pmtvk says:
I think you need to be a little more specific here, between whether Obamacare is constitutional and whether the lawsuit has merit. The “lawsuit” could have no merit while the underlying claim has. Does Barnett and McConnell actually think that the lawsuit has a plausible chance of winning? I doubt it. Barnett’s position (I don’t know about McConnell’s) is that the chances of winning is irrelevant to the merit of the underlying constitutional claim, since the constitution is more than what the judges say it is. But the merit of a lawsuit is only whether it is likely to win, and I am not sure any legal scholar of any repute thinks that the challenge to Obamacare is likely to win.
[DK: There are few, if any, situations in which someone mounting a facial challenge to a law enacted by Congress is "likely to win." Ever since 1789, almost anyone challenging a congressional statute is an automatic underdog. That doesn't mean the suit is "meritless."]
April 12, 2010, 6:04 pmgrrzzly says:
metro11,
Have you seen the data on political donations by law school professors? All the non-liberal academic lawyers are contributors to this blog. There are not enough non-liberals left to write comments.
April 12, 2010, 6:05 pmzuch says:
It may very well hit us as well (but AMT may make that academic). But such an effect has little to do with its unconstitutionality … not to mention the item that you’re complaining about is not the item that is claimed to be unconstitutional.
Cheers,
April 12, 2010, 6:17 pmDoc Merlin says:
It will take me a while to figure out why…
Oh heck, I may as well stop this were it is.
April 12, 2010, 6:21 pmCrunchy Frog says:
Even if the DGA assertions were perfectly accurate, why would any Republican Governor be persuaded? Are Democrats regularly swayed by anything a Republican has to say?
April 12, 2010, 6:23 pmOrin Kerr says:
Anonsters:
It’s interesting, but plainly incorrect under existing Commerce Clause doctrine. As the Eleventh circuit said recently in United States v. Faris, 583 F.3d 756 (11th Cir. 2009):
April 12, 2010, 6:24 pmSara says:
And the States sued in the 11th Circuit? Why?
April 12, 2010, 6:30 pmwooga says:
Point taken. I think the Constitutionality issue is like this:
1. Under an “originalist” form of Constitutional interpretation (as specified by Scalia’s book), the individual mandate is unconstitutional.
2. Under pre-Lopez case law, the individual mandate would, more likely than not, have been held Constitutional under the commerce clause.
3. The brief ‘reigning in’ of the commerce clause that was hinted in Lopez… has largely disappeared.
I think points 1, 2, and 3 should be indisputable. I further think that because of #3 (i.e., that even with the current court roster, federalism still can’t catch a break) #2 has moved from “more likely than not constitutional under the pre-Lopez commerce clause cases” to “almost certainly constitutional under the current commerce clause cases.” But to say that every legitimate constitutional scholar says that all of ‘Obamacare’ (e.g., the individual mandate) passes muster, assumes that originalism is not a legitimate form of constitutional interpretation.
April 12, 2010, 6:37 pmPhatty says:
No, that’s not right. A case could be very strong on the merits, but may not ultimately be successful. This is because the law is not decided by 100% objective and predictive machines, but by fallible humans with motives and biases.
April 12, 2010, 6:39 pmAnonsters says:
So, OK, you honestly believe that Congress has the power to pass a bill authorizing the prosecution of an anonymous blog commenter for calling a Supreme Court justice’s remark at a law school Q&A session “petulant and snarky?”
April 12, 2010, 6:41 pmMalvolio says:
legal1. Relating to the law or to lawyers, as in "legal profession".
(my emphasis) So, the DGA made a claim about lawyers (or law professors specifically), hence it was a legal claim.
“You are technically correct, the best kind of correct.”
The key take-away here is that we can pettifog about the exact nature of errors that Kopel may have made, but there’s no gainsaying that the DGA made an error that completely undermined their position.
April 12, 2010, 6:51 pmMalvolio says:
I think you mean “reining” (metaphorically, using the reins of a horse), not “reigning” (exercising monarchical powers).
April 12, 2010, 6:55 pmDavid M. Nieporent says:
Of course not – but solely because of the first amendment. The commerce clause as currently interpreted provides ample authority for Congress to regulate such comments.
April 12, 2010, 7:23 pmAnonsters says:
Note that the original question, asked of me, did not limit itself to the commerce clause. The question was:
It will take me a while to get over my surprise that (and if) OK read it otherwise, given how precise he is. (Orinbot, engage!)
April 12, 2010, 7:27 pmPersonFromPorlock says:
Yep, talk’s cheap and the cheapest talk of all is “get a job.” Unless you’re hiring, it’s kind of a free-market version of “let them eat cake.” But I hope you’re not implying that because the Republicans are crass the Democrats are benevolent and wise, or that criticism of their economic program, even by the crass, may not still be correct.
April 12, 2010, 7:43 pmMark Field says:
You must have missed Kos’s post commanding us to come over here and dominate the threads with our incisive wit and adorable dog pictures. We, of course, have no choice but to obey our insect overlords.
April 12, 2010, 8:00 pmepluribus says:
Putting aside the question of whether the Patient Protection and Affordable Health Care Act (P.L. 111-148) is properly described as “Obamacare,” a more important question presents itself. Is the provision of the Act requiring that individuals purchase health insurance in fact a “mandate” (as this discussion seems to assume and as it is described in the attorney general’s suit)? If an individual who is required to purchase insurance does not do so, the Act imposes a tax “penalty.” However, the Act also provides:
http://democrats.senate.gov/reform/patient-protection-affordable-care-act-as-passed.pdf
Is a “requirement” enforced by a “penalty” that has no criminal sanctions and cannot be enforced by liens or levies in fact a “mandate”? Any court considering this question would have to look at the actual language of the statute to answer this question, not just accept the bland assertions of the attorney general’s complaint that it is a “mandate.”
April 12, 2010, 8:04 pmBobVB says:
One need look no further than The Daily Show piece to see the clips that started it all – conservative gadflies calling for people to ‘tea bag the white house’. People who tea bag are ‘teabaggers’, and it snowballed from there. (which is a different issue entirely)
April 12, 2010, 8:10 pmNick056 says:
Googling “Obamacare” brings up only articles that attack the Affordable Care Act.
Google “Michael Barone Obamacare” and click “I’m feeling lucky”? You get Barone writing at the National Review, where he asks, “Can the government command you to buy breakfast cereal?” Ah, yes, there’s one of our foremost reporters, using the phrase in a critical opinion piece published in NR. That means that the term is a standard part of our political discourse.
As the NR article notes, Barone is a senior editor at the Washington Examiner Currently, their online opinon articles are uniformly conservative, and, as you know, David, the Examiner is a conservative paper.
Strictly speaking, all the Google search proves is that people who search for Obamacare tend to click on articles that attack healthcare reform. But … that pretty much proves the point, doesn’t it? (Fun moment: I saw a LA Times link with “Obamacare” and expected I’d have a counter-example. But it was a reprint of a Jonah Goldberg article.)
The problem is, David, a Google search belies your claim that “Obamacare” is neutral term. And since you’ve got the job of a scholar but the soul of a political operative, you really know that Obamacare is a negative term, meant to evoke feelings of a paternalistic President deciding your fate with the utmost of intrusive care, and that’s why you use it rather than available alternatives, such as the law’s actual name.
You’re simply a liar.
April 12, 2010, 8:10 pmzuch says:
Look up “legal claim”. Hint: It’s a bit of a “term of art”.
Cheers,
April 12, 2010, 8:34 pmCurious says:
Is there seriously a discussion in the above thread among adults that “you shouldn’t call X the name you want to call it; you should call X the name I gave it”?
April 12, 2010, 8:35 pmConstantin says:
After February’s health care summit, Barack began referring to health care reform as “my proposal” or “my plan.” There’s no reason, from a literal or rhetorical standpoint, why it’s unfair to refer to it as Obamacare.
He owns it, guys. Deal with it.
April 12, 2010, 8:36 pmBobVB says:
And if you truly think that then calling anyone just about any pejorative name can be rationalized.
Again, if someone feels the need to be pejorative out of the gate its an excellent litmus test for not taking them seriously at all.
April 12, 2010, 8:40 pmNick056 says:
Curious,
Kopel went out of his way to claim that Obamacare is a “standard part of political discourse” rather than an idealogical nickname. He lied. Yes, there is seriously a discussion about that moment among adults; as this is at least the second go ’round on this issue with kopel, it deserves some clarity.
As an adult, are you seriously okay with politically-motivated lies wrapped inside of posts criticizing someone else’s politically-motivated lies? (Legal scholars, as Kopel points out, are not unanimous on the ACA. Somin appeared before Congress during the Sotomayor testimony — surely he counts as a legal scholar.)
April 12, 2010, 8:47 pmAnonsters says:
I don’t know… I count him as a Conspirator. ;)
April 12, 2010, 8:52 pmNick056 says:
Constantin,
First of all, healthcare reform was being called “Obamacare” long before this winter, so it stands to reason it would get called Obamacare even without Obama referring to it as “his plan.” Deal with that, because it means that people were happy to associate with Obama iterations of HCR that he wasn’t yet endorsing in full.
Secondly, yes, Obama owns HCR. I’m happy dealing with that because, as David Frum says, it’s not about to be repealed, and further, I think it will prove popular, beyond it being good legislation. I’m sure Obama is happy “owning it” as well. But Bush owned the Iraq War, too. That didn’t make it “Bush’s War” — Congress passed the UAMF, and I bet that people calling the Iraq War “Bush’s War” circa 2003 especially would’ve been seen as idealogical. In fact, let’s not speculate: people doing so were idealogically-motivated most of the time. And then there was PBS Frontline , which … wait, don’t tell me you’re a fan?
The fact is, politics is about the message. And the message of the phrase “Obamacare” is negative and dishonest, not least because although he was instrumental in shaping it, this was not a plan that came from the White House in the same way Hillary’s plan was drafted in the WH. I’ll briefly repeat what I said in a prior post: Obamacare is being used because “Hillarycare” proved to be a bad name for Clinton, and this is an attempt at a repeat and re-branding. Don’t tell me that branding legislation doesn’t matter.
Of course, Affordable Care Act is all about the message, too. So go ahead and use “Obamacare” if you want to sign up for the opposition’s messaging machine. Point out that ACA sounds like a bullshit name to you, if it does. But don’t use Obamacare and then say it’s a neutral term, because that makes you a liar.
April 12, 2010, 9:05 pmc.s.b. says:
DK–Frankly, you lost 50% when you tried to defend “Obamacare” as a “standard part of political discourse.” And then you lost another 25% by describing RB as “among the most important constitutional scholars of our time.” (No offense, Randy.)
As has been pointed out earlier, Judge McConnell’s criticisms were primarily of the the Slaughter Rule, and secondarily of the state-specific incentives that were subsequently removed by the reconciliation process. Neither of these criticisms have relevance to the health care law as it stands today.
And as for Randy–his idea of what is and is not constitutional is expressly out of sync with most 20th century Supreme Court jurisprudence.
April 12, 2010, 9:06 pmChrisTS says:
Malvolio:
I agree with zuch re the post title; ( as I noted earlier), there is an important distinction between an inaccurate legal claim and an inaccurate claim about the opinions of legal commentators.
I’m sorry, but, as a title, the title of this post is misleading. Maybe it is snarky (I no longer know what this means) or overly prescriptive to expect that educated bloggers say what they have grounds to mean. Or, perhaps it is reasonable to ask that they not allow their biases to infect even the titles of their work.
April 12, 2010, 9:08 pmAnonsters says:
I’m just wondering…
Who would commenters include on their list of “among the most important constitutional scholars of our time?”
It appears that most of the commenters have dismissed the notion that Barnett is among them, so I’m just wondering what people’s lists would look like.
April 12, 2010, 9:10 pmColin says:
I’m really happy for you Randy Barnett and Imma let you finish, but Erwin Chemerinksy was one of the greatest Constituional scholars of all time! OF ALL TIME!
*shrugs shoulders nonchalantly in audience’s direction*
April 12, 2010, 9:26 pmyankee says:
I wouldn’t go as far as calling the term inherently dishonest, but it was definitely an attempt to create a pejorative based on the pejorative “Hillarycare.” I agree that “Affordable Care Act” isn’t a neutral term either, any more than “USA PATRIOT Act” is. If you want a neutral term for the Affordable Care Act you have to go for something staid like “PPACA.”
Insofar as Kopel is claiming “Obamacare” is a neutral term, I think he’s so wrapped up in his ideology that he sincerely believes his side’s favored terminology is neutral. It’s a very easy trap for human beings to fall into; never attribute to evil that which can be explained by
April 12, 2010, 9:36 pmstupidityordinary human foibles and all that.yankee says:
This seems like one of those questions that only history can answer, like “who are the greatest artists of our time?” If Barnett succeeds in changing the discourse to the point where the courts decide the Ninth Amendment means something justicable, he’s one of the most important theorists of our day. If his view remains a pet theory ignored by everyone but him and a few hardcore libertarians, he’s a crank. The latter is far more probable: even putatively originalist conservatives aren’t going to buy a version of originalism with a “presumption of liberty” that subjects bans on sodomy and abortion to strict scrutiny.
April 12, 2010, 9:49 pmAnonsters says:
I figured the answers to my question would track answers to the question, “Who’s your favorite justice?” At least in terms of outcome preferences and how the justices are perceived. Although I suppose the answer to who are among the greatest scholars could be answered later in time with more objectivity, like we can say now with some objectivity that Mommsen was one of the greatest classicists evar.
April 12, 2010, 10:25 pmwooga says:
Thank you for exposing my spelling errors. But perhaps I was being clever, using “reigning” as a once removed pun for the monorchid treatment of Lopez (monorchid meaning one testicle). Yeah, that’s the ticket.
April 12, 2010, 10:36 pmLawrence says:
Leiter’s faculty impact rankings would indicate a “top ten” list of Chemerinsky, Tushnet, Tribe, Amar, Ackerman, Farber, Fallon, Balkin, Post, and Levinson. (This list is based on the “public law” category, which includes both constitutional law and legislation. I therefore removed William Eskridge from the top ten.) McConnell, Volokh, and Barnett find themselves just outside this top ten.
That seems about right to me, but I’m sure a number of commenters would disagree.
April 12, 2010, 10:36 pmGrantl says:
Up in Massachusetts, we call it Romneycare. It’s basically a plan built on Republican ideas, many of which the Heritage Foundation was saying nice things about as recently as 2006.
April 12, 2010, 10:48 pmFloridan says:
Why don’t we just agree that liberals won’t complain about the term “Obamacare” and conservatives won’t object to the term “teabaggers?” Seems like an equitable solution.
April 12, 2010, 11:23 pmA. Zarkov says:
No because “Obamacare” has no obscene connotations. Do you not know how the term “teabagger” gets used? If case you don’t, consult the Urban Dictionary here. Did the term “Star Wars” bother you or Reagonomics? Obama has closely tied himself to the health care legislation. He promoted it, and lobbied for it, and mocked his critics. Why not call it “Obamacare?” Is this term imprecise, or ambiguous in any way?
April 12, 2010, 11:36 pmyankee says:
Barnett ranks that high? I hadn’t realized! I’m still putting this in the “only history can answer” category though.
April 12, 2010, 11:57 pmConstantin says:
Alan Grayson, is this you?
What a joke.
April 13, 2010, 12:24 amMike O says:
If the lawsuits had no merit, wouldn’t the Democrats be silently hoping for the Governors to bring them? Having it upheld in the Supreme Court would deal the coup de gras to the constitutional limitations on Congress after all.
I think the Democrats just telegraphed their bluff. The Governors need call it.
April 13, 2010, 12:26 amMike O says:
I’m certain that a far-reaching impact on interstate commerce could be found of Congress looked into the matter.
April 13, 2010, 12:36 amwunson says:
It does if you use it like contemporary American conservatives use “Democrat.”
April 13, 2010, 1:51 amleo marvin says:
Damn right. Where’s Orly Taitz?
April 13, 2010, 2:17 amyankee says:
The Democratic Governors Association isn’t interested in developing legal doctrines that help further left-wing policy goals in the long term. They’re interested in the fortunes of the Democratic Party in the 2010 and 2012 elections. The short-term political ramifications have to do with the Republican machine promoting the view that the Affordable Care Act is unconstitutional, which the state lawsuits contribute to. The elections won’t be affected by a Supreme Court decision that won’t come down until after November 2012.
April 13, 2010, 2:51 amDKH says:
Does anyone read “Obamacare” as anything other than “Obama’s health care plan” or “the health care plan supported by Obama” or “the health care plan passed during Obama’s presidency” (that is, how do the liberal commenters fear that opponents mean it?)? In fact, using “Obamacare” seems far more accurate (and significantly less Orwellian) than “Affordable Care Act,” as the latter assumes a result that won’t be known until far in the future, if even then. Of course, “Obamacare” may be regarded as inaccurate in that the law seems to affect health insurance more directly than health care. Maybe we can start calling it “Obamassurance.”
Similarly, “Reaganomics,” “Star Wars,” and “Hillarycare” all describe a set of policies or policy proposals. They are descriptive and not terribly ambiguous. “Teabagger” is, of course, vulgar and rude, but I don’t care that anyone uses the term, as it generally tells me something about the writer.
April 13, 2010, 3:34 amepluribus says:
DKH says:
I do. The term connotes paternalism, the triumph of the socialist state, the notion (completely erroneous, in the minds of those who use it) that “government knows best” and will take care of you from cradle to grave. All of these ideas are so far from the reality of the legislation, but simultaneously so dear to the critics of the bill and the president, that the term is only used by critics. If “Obamacare” was used by both sides in the debate (as Reaganomics was in the eighties), some argument might be made that it is neutral and objective. It isn’t. It is intended as a pejorative, and that is how it is understood. Any comment that begins with “Obamacare” signals that the commenter is not neutral or objective but is an opponent of the legislation and the President and that the comment will be thoroughly slanted.
April 13, 2010, 9:04 ammattski says:
Dammit, Field!! . . . . Zippit!!
April 13, 2010, 9:25 amluagha says:
Romneycare in Massachusetts is still called Romneycare even though the final outcome is quite a bit poorer, stupider, and failure-guaranteed than Romney’s initial plans and bill. That’s because the final outcome is what he was able to get through his Democrat-dominated state senate.
It’s still called Romneycare, and it’s still an albatross around his neck.
April 13, 2010, 10:19 amneimoller says:
i notice that the conspiracy, including such unbiased experts as lindgren, has been silent since the hacked mails led to a whole lot of nothing including a full exoneration of the participants.
April 13, 2010, 11:20 amepluribus says:
luagha, when you say that “Romneycare” is “an albatross around his neck,” you are telling me that it’s a negative term used by Romney’s critics, not by Romney himself, and not by his supporters. It’s not a neutral or objective term. The same applies to “Obamacare.” It’s not a neutral or objective term. It’s used by those who hope it will become “an albatross around his neck.”
April 13, 2010, 11:21 amSarcastro says:
Albatrosscare?
April 13, 2010, 11:37 amleo marvin says:
Sieg heilcare.
April 13, 2010, 11:52 amMark Field says:
Coleridge was a big fan.
April 13, 2010, 11:52 amSarcastro says:
Health care, health care everywhere and not a drop unsocialist!
April 13, 2010, 12:03 pmleo marvin says:
Co-ler-idge. Das is a Jewish name, ja?
April 13, 2010, 12:06 pmDKH says:
Do those connotations come from the “Obama-” part or the “-care” part?
Those are the connotations of a piece of legislation that tells people they have to have insurance and tells them what kind of insurance they are allowed to have, and similarly gives a bunch of orders to health insurance companies. That has nothing to do with the name. The bill is explicitly anti-freedom and only vaguely pro-freedom, and that will earn a label of paternalistic or socialist in America.
“Romneycare” is a negative term, not because of the term itself, but because the law was a bad idea, was anti-freedom, and has had some negative effects. It is a descriptive term because it was signed during his tenure as governor and he therefore holds responsibility for it.
April 13, 2010, 12:17 pmepluribus says:
DKH:
Neither. It’s the effort to pair them. “Obama” was a positive enough term around election time in 2008–at least positive enough to carry the presidential election. And few of us would object to “care,” standing alone. I don’t know anybody today who gets enraged by Medicare. Put the term together, however, and you get the snide notion that the President is going to take care of us–not only take care of us, but that he presumes that he is capable of taking care of us. This is what evokes visions of socialism, even “Big Brother,” despite the fact that private healthcare insurance will thrive under the reform, that doctors and hospitals and clinics and, yes, insurance companies, will still be privately run and owned for-profit institutions, all in the best traditions of capitalism. It would appear from your remarks that you don’t like the health care reform, but you do like to call it “Obamacare.” This confirms what I said earlier–it’s a term of disapprobation.
April 13, 2010, 1:02 pmDKH says:
Eh, you think people are using “Obamacare” because it has negative connotations; I think it has negative connotations because of what is in the bill.
So you don’t have Libertarians among your acquaintances, and you don’t know anyone who would trade having up to 2.9% more in wages while giving up government-provided medical insurance after they have retired? I’ve seen many arguments about entitlement creep. Of course, if you provide people something for 40+ years, and tax others to provide it, those others will want the benefits when they finally qualify. Of course, “-care” is not perceived negatively in that context.
I don’t think “confirm” means what you think it means. I don’t care for the health care reform law, but that doesn’t indicate that anything else I do correlates with that opinion. What term do you suggest to refer to the law in a neutral way? “Affordable Care Act” assumes a conclusion (much like your contention that “healthcare insurance will thrive”).
April 13, 2010, 7:17 pmMark Field says:
They called him “The Bear Jew”.
April 13, 2010, 8:04 pmDesiderius says:
“Co-ler-idge. Das is a Jewish name, ja?”
Aye, and British.
April 13, 2010, 9:03 pmDesiderius says:
No wonder all you Tory Democrats are so big on the Bill.
April 13, 2010, 9:08 pmNick056 says:
No one’s reading any longer, but epluribus gets it exactly correct. I point out that in 2003, “Bush’s War” would be be seen as partisan, certainly, and for that I’m apparently Alan Grayson. For comparison, he said the whole Reoublican health care plan was “die quickly.” Maybe I shouldn’t have said I thought the law was good, or paraphrased David Frum, or said that the White House didn’t develop the ACA quite like the Clinton administration developed “Hillarycare.” (This last observation is demonstrably true.) Maybe it was saying all three at once — the sum total indistinguishable from a guy who says that his political opponents are indifferent to people suffering and dying.
Look: a little digging around demonstrates that a term offered as a neutral, standard part of discourse, is, in fact, used exclusively by the law’s opponents. I point that out, and I’m just like the guy who said he sees blood dripping from Dick Cheney’s mouth. This is apparently because it’s impossible to say that, yes, Obama does own this bill, but calling it “Obamacare” still carries the connotations described very well by epluribus. In fact, the people deciding that Obamacare is a neutral phras, apparently think that if a word is literally sufficient ( meaning “a healthcare plan for which Obama bears great or chief responsibility”) it can’t also have a negative connotation. Because language is nothing but literal meanings. Just incredible.
April 13, 2010, 10:40 pmAustralian Lawyer says:
Calling it Obamacare in my view creates a positive impression. In this country, our government backed health care plan is called ‘medicare’ which has been one of the most popular government policies in Australian history. Its interesting how different words can create different connotations for different people and situations.
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