Morning Jolt - Brace Yourselves: It's Obamacare Decision Day!

THE BRIEF AGAINST OBAMA The Rise, Fall & Epic Fail of the Hope & Change Presidency by Hugh Hewitt   Nationally syndicated radio host and New York Times bestselling author Hugh Hewitt makes it perfectly clear-President Obama is not just a failed president, but the most spectacularly failed president of modern times. And the path for the American people is clear and urgent: Barack Obama must not be allowed to run the country for four more years. Before you cast your vote in the upcoming election, get all the facts. Read THE BRIEF AGAINST OBAMA. Click for more. NRO Newsletters . . . Morning Jolt . . . with Jim Geraghty June 28, 2012 In This Issue . . . 1. Brace Yourselves: It's Obamacare Decision Day! 2. Keep Coloradans in Your Thoughts These Days 3. How Do You Fix CNN? 4. Addendum We begin today with an embarrassing correction: Venus in Pundit Form is Andrea Tantaros, not Tarantos. I blame Best of the Web's creator, who is, of course, Mercury in Pundit Form.   Jim 1. Brace Yourselves: It's Obamacare Decision Day! It's Decision Day for Obamacare. Batten down the hatches! All crew to Battle Stations! Red Alert! Shields to Maximum! . . .   Actually, wait. Don't do any of those things, as those are the things you do before a grand conflict. A Supreme Court decision represents the end of a grand conflict.   Obviously, everything you've read in recent days has been speculation, and it all becomes moot in a few hours. But I like the deductive reasoning used by Sean Trende yesterday:   Roberts is the likely author of the health care decision for three reasons. First, Thomas is the only justice without an opinion from the December sitting, so he is probably authoring the First American opinion still outstanding from that sitting (and it unlikely that a staunch originalist like Thomas could hold together a majority on an issue like the health care law).   Second, it is unlikely that an opinion of this magnitude would trickle down to a junior justice like Sotomayor. The Alvarez opinion from February seems more appropriate for her.   He thinks that the Court voiding the entire Obamacare law, and not just the individual mandate, is more likely than the conventional wisdom would suggest: "I think there are two main reasons that the court might choose not to infer severability and either throw out the entire law, or throw out Title I (and possibly Title II), effectively gutting the bill. First, the government let the proverbial camel's nose under the tent: It conceded that if the court threw out the mandate, then a few other provisions, such as guaranteed issue and community rating, would have to go as well. The problem is, once you've conceded that the court has to go down this road in some cases, the justices have a much harder time drawing a principled line in the sand as to where they should stop. Second, and relatedly, having read the transcripts, I don't see much evidence suggesting that the five justices believed they could decide which pieces to throw out and which to keep."   Trende also warns, "I think conservatives have been irrationally exuberant over the tone of those arguments. The Arizona immigration decision and the juvenile life-without-parole cases looked to be in real trouble post-argument, and yet both turned out fairly well for liberals." But he concludes, "I wouldn't give more than a 15 to 20 percent chance of the Affordable Care Act being upheld. And even that slim chance really is more a nod to the fact that we don't know what is going on in the justices' heads, so even when all the evidence points one direction, we have to leave some room for the opposite outcome."   For what it is worth, the editor of SCOTUSblog thinks the conventional wisdom is way, way off:   In the end, you have to make a prediction and take responsibility for it. I believe the mandate will not be invalidated tomorrow. Far less important, I expect the principal opinion will be written by the Chief Justice; a majority of the Court will find it has jurisdiction; and the challenge to the Medicaid expansion will be rejected.   And then this point from Ace at Ace of Spades is worth noting, even though the notion of any of the four "liberal" justices on the Court declaring the individual mandate unconstitutional is pretty hard to wrap one's head around:   I can't help but keep thinking that when Ginsberg talked about this case a few weeks ago, she said the issue was whether the mandate could be severed. She did not say the issue was whether or not the federal government could impose mandates as it liked, with no Constitutional authority save the much-abused Commerce Clause.   I can't help thinking that the mandate itself is actually being overturned by not five votes but by more than five votes, and that the real controversy will be about severability. I still remember Breyer becoming flustered when he realized that there really was no limiting principle, if the government's lawyers' arguments were accepted. I remember him suddenly realizing -- sort of embarrassed -- that yeah, the government could force you to eat broccoli, if its theory -- health care is unique; the commerce clause gives the government power to regulate your health, etc. -- carries the day.   Is it possible we'll see 7-2 against the mandate, and then 5-4 striking the whole law down?   Was Ginsberg deliberately misleading us? Why would she do that? If she says the heart of the question is severability, then the heart of the question is not whether the mandate is constitutional. If the question is severability, the constitutionality of the mandate has already been answered, in the negative.   We'll know in a few hours.  2.  Keep Coloradans in Your Thoughts These Days Keep remembering the good folks of Colorado: HelpColoradoNow.org     Michelle Malkin is enduring this news story personally:   Yesterday was the most horrific day since the Waldo Canyon Fire outbreak forced thousands of us out of our homes. My family is on Day 5. As I first told you over the weekend, our neighborhood is and remains on mandatory evacuation. Thanks to a compassionate CSPD officer, we were finally able to get the kids' parakeets out of the house (it's standing for now). Unfortunately, one of the birds died of smoke inhalation Tuesday afternoon. The kids are crushed. But we are thankful to be alive and grateful for the extraordinary efforts of first responders, police, fire, military, non-profits, individual volunteers, private philanthropists, and corporate/civic support.   Dave Freddoso notices, "A lot has happened since Obama last called Colorado's governor about the fires. 18 Obama fundraisers, for example." 3. How Do You Fix CNN? Politico takes a long look at CNN -- still quite profitable, but increasingly sagging in the ratings, and searching for an identity in contrast with Fox News and MSNBC.   CNN, the founder of the cable news genre, is now registering its lowest ratings since the first Gulf War. In the second quarter of 2012, the network attracted fewer viewers than at any time in the past 21 years, it was reported Tuesday. An average of 446,000 people now watch CNN's primetime programming while a mere 319,000 watch its daytime programming - declines from 2011 that are at least twice as severe as those suffered at Fox News and MSNBC. . . .   In many ways, the Republican primary, which earned the network better ratings than MSNBC in the first quarter, only served to mask the longstanding problems at CNN. With the exception of late-breaking news events (hurricanes, celebrity deaths and the like) and debates or primary night coverage, CNN consistently averages just over half of MSNBC's primetime ratings and just a quarter of those of Fox News. It is increasingly falling behind MSNBC in the daytime hours as well.   For his part, Feist remains bullish on CNN's political coverage. He even believes that Americans are starting to resist the partisan analysis provided by MSNBC and Fox, citing a recent Pew survey that identifies independents as the fastest-growing political group in the country, at 38 percent.   Feist explains CNN's role in the current media environment in sports terms. If you're watching a game between the Red Sox and the Yankees, he asks, don't you want a non-biased sportscaster covering the play-by-play?   "There are a lot of people . . . who are baseball fans. They don't cheer for the Red Sox or the Yankees, they just cheer for baseball," Feist told POLITICO. "They want to get their coverage straight. They don't want coverage of the game colored by the fact that their announcer has taken sides."   First of all, I'm not sure that's true anymore. I'm not sure there are that many garden-variety political junkies who don't lean to one philosophy or the other. I think I heard somebody once describe CNN's current status as "fire-alarm television" -- if something blows up overseas, you're likely to tune in to CNN, which is pretty likely to have reporters and affiliates on the ground. Absent some breaking, dramatic, faraway news story, you flip past Anderson Cooper walking through yet another refugee camp in a tight T-shirt.   CNN is looking in some very unexpected directions as they search for an identity:   World-renowned chef, bestselling author and Emmy winning television personality Anthony Bourdain will join CNN as host of a new weekend program, creating a signature showcase for the network's coverage of food and travel. The announcement was made by CNN Worldwide Executive Vice President and Managing Editor, Mark Whitaker.   Launching in early 2013, the show will be shot on location and examine cultures from around the world through their food and dining and travel rituals. Slated to air domestically on Sundays in prime time with repeat airings on Saturday nights, it will mark a further step in broadening and distinguishing CNN's weekend programming from its traditional weekday news coverage.   Based on what Bourdain has done so far, it's likely to be fascinating, off-kilter, funny, sarcastic . . . although I'm not quite sure much of what he's done on his Travel Channel show would meet most folks' definition of "news."   (Having said that, his program depicting being in Beirut, Lebanon when the 2006 Israel-Lebanon conflict suddenly erupts is some of the most gripping television journalism you will ever see.)   Ed Driscoll contends a big problem is CNN's increasingly implausible claim of balance: "And if you believe that CNN really is "committed to nonpartisan news-gathering" free of partisanship (cough -shilling for Saddam, getting cozy with Kim Jong Il -- cough -- Wright-Free Zone -- cough -- Anderson Cooper's painful "teabagging" references, baking cakes for Obama and on and on and on) then you might be working for a "news" organization that is also a partisan shop pretending to be objective, and wondering why it's losing audience as well. Whatever Fox and MSNBC's other issues, at least consumers know what sort of product they're getting when tune into those networks. Trying to pretend to be objective is a long-outdated model that's reached the end of the production line."   Let me toss out three random ideas for CNN:   1. Bring back "Firing Line," or a version of it. God help whoever tries to step into the role of WFB, but . . . if you're going to copy an old idea, why not the best? Jay Nordlinger taped a few test pilot episodes for an interview show, and the episode I saw on the last NR cruise was delightful.   2. Bring back some version of "Crossfire." Since the cable news world seems adamant that former New York governor/prostitute customer Eliot Spitzer must have a show, pair him up with the most brutal, scathing, righteously furious conservative co-host imaginable, somebody who would tear into Spitzer mercilessly, night after night. Gingrich? Mark Levin? Michelle Malkin? As I wrote when Spitzer's show was canceled:   Had CNN matched Spitzer with, say, Mark Steyn, at least we would have been treated to some amazing fireworks. Imagine:   Spitzer: . . . and that's why I think Obama's financial-reform proposal is a winner. Mark, what do you think?   Steyn: You treacherous, reptilian whoremonger, your foul diatribe spurs me to inch my chair further away from you, as I expect any moment now you will vomit forth a lie so reprehensible and toxic to the very metaphysical concept of Truth that God Himself will be moved to strike you with lightning.   3. Try the panel show, and keep rotating personalities in and out until you get the right chemistry. Obviously I'm pretty biased in my admiration for "The Five" crew, but I think they've got the closest to the ideal, in that you get the sense that these five (really seven or eight considering the guest hosts who rotate in and out) really would be fun to hang around and shoot the breeze with; the talk can get contentious and passionate, but you get the feeling they with each other. We'll see if the same feeling pervades that new MSNBC midday show, S. E. Cupp and Three Insufferable Liberals. 4. Addendum Kevin Eder: "It's amazing how full of crap the mainstream media, I mean the Obama campaign, I mean the mainstream media can be."    Quick Links:  The Campaign Spot   National Review Online   E-Mail Jim Geraghty Save 75% . . .  Subscribe to National Review magazine today and get 75% off the regular subscription rate. Click here for details.   Check out all of NRO's free newsletters: Morning Jolt, The Goldberg File, NRO Digest, and NROriginals. 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