Is Paul Clement Destined For A Wet Willy? Lead Attorney In Health Care Case Calls Arguments On First Day Was “Practical Joke” Pulled By Justices On Nation

Was the first day of arguments over the health care law historic . . . or just a giant practical joke? Paul Clement, representing the 26 states challenging the law, said the first day of arguments in the litigation was “a kind of practical joke that the court is playing on the public.” It would not seem the most politic comment to make when you will be seeing these nine jokers in the morning.

The justice on Monday appeared entirely unconvinced that the individual mandate provision constituted a tax rather than a penalty for the purposes of the Anti-Injunction Act. The view of the justices and most experts was a bit of a slap in the face of the United States Court of Appeals for the Fourth Circuit (and D.C. Circuit Judge Brett Kavanaugh), which ruled that it was barred from hearing the case until the first penalties come due in 2015 under the law. The 1867 law mandates that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.” Kavanaugh wrote a dissent in the D.C. Circuit decision stating ““The Anti-Injunction Act means that a suit challenging the individual mandate cannot be entertained until 2015, unless Congress acts before then to exempt these suits from the Act. . . The Tax Code is never a walk in the park. But the statutory analysis here leads to a firm conclusion that the Anti-Injunction Act bars this suit.” However, if the comments of the justices are any indication, that is a walk Kavanaugh will take alone in Washington.

In one of a number of contradictions, the Administration initially argued that the law was a tax and then changed its position in the midst of the litigation below. With no party arguing for the applicability of the law, the court hired Robert A. Long to argue the issue and then heaped mild abuse on his arguments.

Clement’s comments, however, were a standout. He also added that the first day’s arguments were “about the most boring jurisdictional stuff one can imagine.”

He is scheduled to go before those boring, practical jokers in a few hours.

Source: NY Times

12 thoughts on “Is Paul Clement Destined For A Wet Willy? Lead Attorney In Health Care Case Calls Arguments On First Day Was “Practical Joke” Pulled By Justices On Nation”

  1. BlackBeard, if you are here I’d appreciate a response to my statement unless you don’t have valid one…..which is fine…..

  2. Come on folks, this is a done deal. By 2015 you “will have insurance” or be taxed or charged extra for not having it when you are billed…

    The Insurance industryis in on this and they met with Obama and his legal boys and (his pal) good ole’Justice Elana Kagan..long before Obamacare was passsed, and crammed down our throats by Congress and Barry’s socialistic Demo’crats. words like comparing …Tomatoes to Tamatoes…I say its all apples,,,,hey Let’s call the whole thing off..! It’s imposing Insurance on us whether we want it or not..same as Driver’s licenses, fishing licenses. you name it it’s all done for the Proft and MONEY. Think this way, soon the Baby Boomers will be retired and strain the hospitals; and doctors, or so they think; and strain the Home Health care and ER’s and Nursing homes, and the people who will make out will be the Insurance companies, Collection debt agencies, and Insurance Lobbyists and the Government who is directly involved. Makes you want to end it now…find a bridge and take a final leap. So much to look forward to…old age and paying until pronounced dead..Humm can the grave digger force you to buy a PLOT?

  3. BB,

    What is the response? You disputed my reasoning…. I would like a codification or clarification….. If you can’t support your statement and reasoning…. I understand…..

  4. Blackbeard,

    I am very interested in the applicability of the anti injunction act of 1867 to the dredd scott decision…. I was under the impression that that decision predates the Civil War….. Please expand on this……

  5. Blackbeard,
    More please. Give us the real dirt.

    As for accents, did NYC exist in 1776?
    And why not, they’ve already taken over the Fed, the Treasury, the National Economic Council, or whatever comes to mine.
    Plus backing up the creation of scam industries every week. The actual list is very long in terms of types only—not just in the numbers of scammers or trillons taken. And whether it’s white shoe, or black shoe, the money is still green.

  6. Avoiding the issue of Clement’s fate (he is just grandstanding for the Republicans), and NBAL (not being a lawyer) I will address the tax vs penalty issue.
    If the case can be made that the purpose and results of the money collected can be used to compensate the government for it’s costs providing this medical coverage to one who refuses to pay for his own; then why can’t this be regarded as a tax. There should in which case be some form of proportionality between the cost of coverage (industry average?) and the penalty, and how long one is exempt from a new penalty, ie the period covered by the “tax”.

  7. “On the first day of health care reform arguments before the Supreme Court, two justices needled a top Obama lawyer for simultaneously calling the fine that will be paid under the law for not purchasing insurance a “penalty” and a “tax.”

    The confusion arises because of the administration’s argument that the power to enforce the individual mandate is rooted in Congress’ taxing power — but that the mechanism itself is designed to be a penalty, not a revenue-generating policy.

    The narrow but important distinction created a communication challenge for the lawyer representing the Obama administration.

    U.S. Solicitor General Donald Verrilli used the phrase “tax penalty” multiple times to describe the individual mandate’s backstop. He portrayed the fee as a penalty by design, but one that functions as a tax because it’s collected through the tax code.

    “General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax,” said Justice Samuel Alito, in one of the few laugh lines throughout the 90 minutes of argument Monday.

    The remark underscores the fine line the White House is walking in its argument. On one hand, it says the backstop is not a tax, because that could subject it to the Anti-Injunction Act — the focal point of Monday’s arguments — and delay a ruling to at least 2015. On the other, they claim that the power to impose a penalty derives from Congress’ broad taxing power. That’s in part because calling it a tax makes defending the mandate easier — Congress’ power to levy taxes is less in question than its power to require people to do things.

    Justice Elena Kagan asked whether refusing to buy insurance would constitute breaking the law, to which Verrilli responded that if people “pay the tax, then they are in compliance with the law.” That caught the attention of Justice Stephen Breyer.

    “Why do you keep saying tax?” Breyer interjected, to more laughs.”

    Instead of laughing, “General Verrilli” should be thrown in jail for being a disingenuous lying scumbag politician’s lawyer and only allowed to come out once he’s clear to himself on whether it’s a tax or a penalty.

    Over at Salon, Robert Reich discusses how Obama could turn a defeat here into Medicare for All, a single payer health care system. It was Obama of course, who took single payer off the table before the guests had even arrived. If Obama were to go this route, which is of course terribly unlikely, I am sure we would hear all that bullshit about 11 dimensional chess again.

  8. After listening to the so called oral argument yesterday I decided that the 8 egotists on the Court need psychotherapy. The ninth justice tries to allow the attorneys to state a case and does not interrupt. What is also annoying is the predominance of NYC accents from the justices. Turdy, Turd and a Turd (33rd Street and 3rd Avenue).
    In Dred Scott the tax had not been paid on the sale of Dred, yet the Court heard the case. Of course that was before 1867 and before the civil war.

    It is time to end the oral argument as a pasttime at the Supreme Court and just let the advocates mail in their briefs and be done with it. A “word in edgewise” would be hyperbole. Yo, Scalia, do you think the Framers of the Original Constitution had the original intent to let an Italian Catholic sit on the High Court? Or three women from the Bronx? They are rolling over in their graves.

  9. “He is scheduled to go before those boring, practical jokers in a few hours.”

  10. AY – how depressing. We already have an over allotment of justices with flapping gums, smart mouths and a lack of respect for the court why add another?

  11. Btw….if a Republican is elected and a vacancy happens on the court….. Clement is the fair haired boy of the gop…..he will likely get the nod…. He is well respected and from, if I recall Wisconsin…..

  12. One must remember the source of the 1867 law and purpose. If I recall it was the reduce the debt of the Civil War…. The old adage that whoever holds the money calls the shots…. I agree that it’s a tax or a penalty….. In this case it’s a distinction without a difference…..

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