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Jewish World Review April 3, 2012/ 11 Nissan, 5772 All of the liberal panic unnecessary --- and all the conservative hope unfounded? By Byron York http://www.JewishWorldReview.com | During the long, painful debate that led to the passage of Obamacare, Republican lawmakers made a single request of their colleagues, the press and the public: Please read the 2,700-page bill. That request was mostly ignored, even by many of the members of Congress who voted for what became the Patient Protection and Affordable Care Act. Now, it's someone else's turn not to read the bill. In oral arguments before the Supreme Court recently, some justices made it abundantly clear that they, too, haven't read the entire law, even if they are considering a constitutional question that could kill the whole thing. "I haven't read every word of that, I promise," Justice Stephen Breyer said to a lawyer arguing the case. "So what do you propose that we do other than spend a year reading all this?" "What happened to the Eighth Amendment?" Justice Antonin Scalia erupted after a lawyer suggested the justices might go through the bill and decide which parts were constitutional. The Eighth Amendment prohibits cruel and unusual punishment, and Scalia clearly thought reading the entire law would qualify. "You really want us to go through these 2,700 pages?" he asked the lawyer. "And do you really expect the court to do that?" As for his part, Chief Justice John Roberts said only that he had "looked through" the entire law. That no justice seemed eager to delve into the whole thing might have serious consequences on the issue of what is called "severability" -- that is, whether part of the law, in this case the individual mandate, can be declared unconstitutional and struck down, while the remainder stays in effect. It's just not clear what those consequences might be. On the one hand, some of the justices appear hesitant to strike down the entire law, even if they kill the mandate, because there are lots of other things in the law that would not be directly affected by losing the mandate. But other justices worry that if they strike down the mandate and leave the rest standing, it would leave an unworkable mess. When a lawyer urged the court to use "judicial restraint," Justice Anthony Kennedy wondered whether leaving some of the law standing might be more radical than knocking down the whole thing. Kennedy suggested the court might be overstepping its power if "one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than ... striking the whole." Talk like that -- Kennedy is, after all, widely thought to be the swing vote who could save Obamacare -- left the law's supporters absolutely freaked out as they watched and read reports suggesting Obamacare is doomed. "How did so many commentators predicting this would be a slam dunk for the Obama administration get it so wrong?" asked liberal Washington Post blogger Greg Sargent. Sargent theorized that the law's supporters simply underestimated the right-wing zealotry of Antonin Scalia. But there's an easier explanation: They simply never considered whether the vast, unprecedented and intrusive new law would raise any constitutional issues. It never entered their minds. Two years ago, then-House Speaker Nancy Pelosi was taken aback when a young conservative reporter asked her, "Where, specifically, does the Constitution grant Congress the authority to enact an individual health insurance mandate?" "Are you serious?" Pelosi responded. "Are you serious?" Pelosi never answered the question, and neither did many liberals, even as a serious challenge to Obamacare made its way to the Supreme Court. In the end, it might turn out that all of the liberal panic was unnecessary -- and all the conservative hope unfounded. Listening to the arguments and reading the transcript, it's not at all clear that the court will strike down the individual mandate, much less the whole of Obamacare. Yes, Kennedy sounded skeptical, but he's entirely capable of engaging in tortured logic to allow the law to stand. Chief Justice Roberts' position isn't clear, either. The case wasn't a slam dunk before, and it's not a slam dunk now. But it will be over soon. The justices have already met in conference and taken a preliminary vote on the case. A final decision is due in June. Every weekday JewishWorldReview.com publishes what many in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here. Comment on Byron York's column by clicking here. Previously: 03/27/12 Obama headed for defeat in pipeline fight 03/20/12 Why do island territories play key role in GOP race? 03/14/12The real bias in 'Game Change' 03/06/12 In politics fight, Breitbart knew culture is key 02/27/12 Hollywood makes 'Game Change' into Sarah Palin story 02/22/12 Why did Santorum lose in 2006? 02/14/12 After wins, Santorum targets Romney's native state 02/07/12 Running as businessman may be Romney's curse 02/01/12 What REALLY happened to the Gingrich ethics case? 01/25/12 Romney's unsolvable Massachusetts problem 01/18/12 If Romney wins, count on Obama to dig into Bain 01/10/12 Is New Hampshire fit to pick a president? 01/04/12 How Romney began journey on abortion 12/28/11 Blame Florida for GOP's holiday craziness 12/20/11 Huckabee dismisses draft but remains a force in Iowa 12/13/11 Surging fast, Gingrich looks to take Iowa 12/06/11 Voters like Newt, but wait to see if he's real 11/29/11 Despite surge, peril for Gingrich all around 11/22/11 To bounce back, Perry must mix it up 11/15/11 Newt's wonkish, unconventional campaign 11/08/11 Tim Pawlenty, the man who coulda been a contender 11/07/11 Gingrich big winner at key Iowa event 10/31/11 Perry's right: Republicans drowning in debates 10/25/11 Romney health plan still faces challenge from GOP 10/18/11 Lesson of Perry's candidacy: Think before you run 10/06/11 In veepstakes, candidates deaf to Rubio ‘no’ 10/04/11 Cain's 9-9-9 plan sounds good, but will it work? 09/27/11 Media bias 101 09/20/11 Obama plagued by Dems' ingratitude 09/13/11 Will immigration cripple Perry's bid? 09/06/11 Left paints the campaign as a religious war 08/30/11 Keep your health plan? Don't count on it 08/24/11 GOP operatives fear lasting Ron Paul problem 08/16/11 Michele Bachmann and the ‘submissive’ question 08/09/11 Obama partisans ignore facts when bashing Bush 08/02/11 When partisans fling charges of partisanship 07/26/11 Obama could be comeback kid if he heeds Clinton's lessons 07/19/11 Book casts doubt on Obama healthcare story 07/12/11 Controversial budget law begins to pay off 07/04/11 Anti-Mormon bias persists, notably among Dems 06/27/11 Huntsman tries McCain model, but he's no John McCain 06/06/11 Amid media circus, Palin lays out policy positions 05/30/11 GOP condemns Dems' ‘breathtaking’ refusal to produce budget 05/24/11 Eye-for-an-eye filibuster stops Democratic nominee 05/17/11 Amid RomneyCare fight, voters ask: Where's Mitt? 05/10/11 Bin Laden coup won't help Obama in budget fight 05/09/11 Inside the GOP debate: Pawlenty underwhelms, Cain struggles, Santorum scores 05/02/11 Huckabee decision will shape GOP presidential race 04/27/11 Get ready for game of chicken over debt ceiling 04/25/11 McCain: Libyan rebels seek U.S. recognition, might pay for war costs 04/18/11 Have the U.S. and NATO given up on Libya mess? 04/11/11 Reforming entitlements is key to a strong military 04/05/11 Jihadis Who Killed Americans Get U.S. Support in Libya 04/04/11 Unions deploy money and muscle in Battle of Wisconsin 03/30/11 Labor fight in Wisconsin is far from over 03/28/11 Obama fails to grasp the gravity of going to war 03/21/11 Union equates lavish benefits to black civil rights 03/15/11 GOP should heed lesson of 1991: No guts, no glory 03/14/11 GOP focuses on NPR's subsidies, not its politics 03/08/11 While Obama seeks new ideas, his bureaucrats stifle them 02/28/11 Why the GOP shouldn't fear a government shutdown 02/22/11 In Hawaii, a dispiriting glimpse of one-party rule 02/21/11 Obama team uses slippery words to tout budget 02/15/11 Myth and memory: The battle over Reagan's legacy 02/07/11 Invoking Reagan, Palin says ‘this is a time for choosing again’ 01/31/11 With each passing year, Reagan grows larger in the American political imagination 01/24/11 House GOP begins long drive to dismantle Obamacare 01/17/11 GOP gears up again to strip NPR of federal funds 01/10/11 To House GOP, illegal immigration is a jobs issue 01/03/11 Obamacare mess is legacy of Dems' moment of power 12/27/10 Smiling Dems will soon cry ‘Washington is broken’ 12/20/10 Dems are earmark junkies but GOP goes straight 12/13/10 Needed: A ‘more presidential’ Palin 12/06/10 With Dems in a funk, Obama charts a new course 11/29/10 Obama's poll numbers point to his defeat in 2012 11/22/10 Holder ignored risks of civilian terror trials 11/16/10 Dems love facts and science --- except when they don't 11/08/10 Obama, new GOP lawmakers are on collision course 11/01/10 New GOP star on track to defeat Dem legend Russ Feingold 10/26/10 If Dems lose, Obama will blame everyone but himself 10/19/10 Profligate Congress should read its own bills 10/13/10 Why Big Labor couldn't match Glenn Beck's rally 10/11/10 Trash-talking Democrat faces defeat in Florida 10/05/10 A GOP unknown in striking distance of Barney Frank 09/28/10 Administration inflates green-jobs numbers 09/20/10 In Delaware, GOP should target Dems, not O'Donnell 09/14/10 GOP Insiders Wary of Landslide Predictions 08/31/10 For Obamacare supporters, judgment day approaches 08/23/10 Obama has himself to blame for Muslim problem 08/17/10 Cut spending without cutting services? Start here 08/17/10 For Michelle Obama, extravagance dents popularity 08/09/10 Obama's zealous civil rights enforcer gets busy 08/02/10 A battle between Left and Right --- inside the GOP 07/26/10 GOP spoiling for fight over Berwick appointment 07/20/10 How long will the public tolerate Afghan war? 07/12/10 NASA's Muslim outreach: Al Jazeera told first 07/02/10 Legal complaint against Gore is detailed, credible 06/28/10 Obama and Dems heading for electoral disaster 06/21/10 Who told Obama drilling is ‘absolutely safe’? 06/14/10 Billions for ‘green jobs,’ whatever they are 06/07/10 Sestak a no-go for any job. So what was the deal? 05/31/10 As economic worries worsen, White House puts on the glitz 05/25/10 GOP dilemma: Fight Kagan, or go along? 05/11/10 Enforcing nation's immigration laws would be a bargain 05/03/10 How Obama could lose Arizona immigration battle 04/27/10 What's behind the anti-Tea Party hate narrative? 04/20/10 As government expands, beware the post-office example 04/19/10 Who wins in 2010? Good luck reading tea leaves 04/12/10 GOP Obamacare strategy: Try repeal, then cut 04/05/10 Obamacare was mainly aimed at redistributing wealth 03/30/10 Message to Dems: People still don't like Obamacare 03/23/10 The coming consequences of Obamacare 03/16/10 Marco Rubio and the Republicans who love him 03/15/10 GOP hopes town halls take health care off table 03/08/10 Dems turn risky health vote into manhood contest 03/01/10 Why Obama defies the public on health care 02/22/10 South Carolina mulls 2012: Romney? Palin? Huck? 02/16/10 GOP winning war over Miranda rights for terrorists 02/09/10 Who are the 300 terrorists held in U.S. prisons? 02/02/10 Is Obama dissatisfied with being president? 01/19/10 The Republican dilemma: Good Michael or Bad Michael? 01/12/10 Now the lawmakers are figuring out what they didn't know 01/05/10 GOP deserves blame for Democratic excesses 12/29/09 Dems' dreams of a blue West begin to turn red 12/22/09 Why Dems push health care, even if it kills them 11/30/09 Dems' kamikaze mission: Health care by New Year's 11/23/09 Why it's a mistake to bring Gitmo prisoners here 11/16/09 Dems' slick fix: $210 billion of fiscal restraint 11/10/09 Obama can't be community organizer for the world 11/02/09 At key moment, Obama leaves health post unfilled 10/26/09 ‘Fierce urgency' for jobs, not health care’ 10/12/09 Facts hurt Jennings in youth sex controversy 10/05/09 Amid terror threat, Dems chip away at Patriot Act 09/27/09 In Afghanistan, let U.S. troops be warriors 09/21/09 Under fire, Democrats abandon ACORN in drove 09/14/09 Dems stifle Republican health care plans 09/08/09 For Dems, a serious Charlie Rangel problem 09/07/09 Obama's speech: Wrong setting for a sales job 09/01/09 What happened to the antiwar movement? 08/24/09 Why Dems may jam through health care plan 08/17/09 GOP thinks the unthinkable: Victory in 2010 08/10/09 The empty words of a journalist turned flack 08/03/09 Probe finds new clues in AmeriCorps IG scandal 07/27/09 Obamacare haunted by unkept promises of stimulus 07/20/09 Why the GOP failed the Sotomayor test 07/13/09 What the GOPers will ask Sotomayor 06/29/09 Serious questions remain for Mark Sanford 06/22/09 How GOPers can crack the AmeriCorps scandal 06/16/09 Worried about Sotomayor? Consider Andre Davis 06/08/09 Can Mitch Daniels save the GOP? 06/01/09 When the Dems derailed a Latino nominee 05/26/09 Why the GOP will defeat Obama on healthcare 05/19/09 Rosy report can't hide stimulus problems 05/12/09 The Reagan legacy is the man himself 05/05/09 Sen. Specter, meet your new friends 04/27/09 Ted Olson: ‘Torture' probes will never end 04/20/09 Who's Laughing at the ‘Axis of Evil’ today? 04/14/09 Congress needs Google to track stimulus money 04/06/09 Beyond AIG: A bill to let Big Government set your salary 03/30/09 On Spending and the Deficit, McCain Was Right 03/24/09 It's Obama's crisis now 03/17/09: Geithner-Obama economics: A joke that's not funny © 2009, NEA

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